The couple pictured in the now-infamous Hamilton College House sex-scene photo could be prosecuted under state law for exposing themselves in public.
But experts say it’s not likely.
Penn’s Office of Student Conduct has not said whether it will take action in this regard and has not returned repeated phone calls for comment.
The Pennsylvania criminal code states an act is "lewd" if the person involved "knows [it] is likely to be observed by others who would be affronted or alarmed." The crime is a third-degree misdemeanor.
The couple at the center of last week’s scandal had sex against the window of the high rise apartment for three days in a row, said fifth-year Psychology graduate student Andrew Geier, who was closely involved with the case.
Patrick Egan, an attorney and professor at Temple University Law School, said prosecution for these acts is possible but unlikely.
"If you do something continuously in front of a window, one can infer that there is knowledge" that it is a public act, Egan said. "You’re in front of a window — hello, somebody can see you."
A conviction for a third-degree misdemeanor would result in probation and a permanent mark on the offender’s criminal record, Egan said.
One senior who wished to remain anonymous said he filed an indecent exposure complaint against the couple in late October but that the Office of Student Conduct decided not to act on the grievance.
The student said OSC Associate Director Ed Rentezelas e-mailed him last week to say that there would be no investigation into his claim.
"Our office will not be taking any further action in your case," Rentezelas said in the e-mail, which the student forwarded to The Daily Pennsylvanian. OSC officials did not return calls to verify the authenticity of the e-mail.
History professor Alan Kors — who served as an advocate for the Engineering junior initially charged by the University with sexual harassment for taking and distributing the sex-scene photos — said he does not think that indecent-exposure charges are necessary.
"Let’s put this behind everyone," he said. "I hope people will just leave [the couple] alone."
The student who lodged the indecent-exposure complaint said he filed it after the OSC investigated him for downloading and e-mailing the pictures and creating a group on facebook.com making light of them.
"At that moment, I got very angry. I was basically outraged," he said. "I was just trying to show [the OSC] how ridiculous it was" that they were investigating him and not the couple, he said.
The student said the investigation into his actions ended in late October. Though he was forced to remove the Facebook group, the student was never charged with any violations.
Kors called the investigation of the student "absolutely disgraceful," and compared it to the case against the Engineering junior.
"It is indicative of the same lack of judgment, the same double-standard, the same contempt for student rights," he said, calling the OSC "unfair, capricious and dumb."
Kors has called for a University investigation of the OSC. He sent a letter explaining his position to the president and provost Friday night. He had not received a response as of yesterday afternoon.
Schools: University of Pennsylvania