We believe that the law should be not merely available but understandable. Having law that can be readily understood without hiring a lawyer and a bunch of legal research is not always easy, but it’s an important part of openness (and the legitimacy of the legal system in the public’s eyes).
A common way that legislatures fail to achieve that objective is by enacting an ambiguous statute, the meaning of which can only be known by parsing vague and/or lengthy definitions, understanding a body of case law, and resolving various constitutional and legal questions.
This post illustrates legal murkiness by examining how Virginia law treats sartorial transparency, with a few side notes on related behavorial statutes. (Go ahead — be a little bit naughty and read on…)
That brings us to Virginia’s laws concerning “Crimes Involving Morals and Decency” (Chapter 8 of Title 18.2).
This post is not about…
This is not a post about oral or anal sex. To the chagrin of Attorney General Ken Cuccinelli*, the Fourth Circuit has put that criminal prohibition (in Va. Code § 18.2-361(A)) to rest. See MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013) [decided March 12, rehearing denied April 8, cert. denied by SCOTUS Oct. 7]. And, although nothing’s impossible, it seems unlikely that the General Assembly will revive that prohibition (at least for consenting adults).
* See this campaign webpage, fact sheet, and now-defunct website. To be fair, the legal objection was a technical one – that the 4th Circuit did not correctly apply the deferential habeas standard of review – and some private commenters agreed with that objection. See Walshlaw (a Richmond area lawyer’s blawg).
Nor is this a post about the “what century is this again?” prohibition on “fornication” – sex between unmarried people – in Va. Code § 18.2-344. Yes, Virginia, if two people over the age of 18 are unmarried and have sex, the Commonwealth of Virginia says they’re criminals.
Although the same principles apply, this post is also not about other dubious prohibitions, such as the bans regarding “obscene items” in Va. Code §§ 18.2-372 – 18.2-374, and Va. Code § 18.2-427’s prohibitions on using “obscene, vulgar, profane, lewd, lascivious, or indecent language”, “mak[ing] any suggestion or proposal of an obscene nature”, or “threaten[ing] any illegal or immoral act with the intent to coerce, intimidate, or harass any person” over the telephone. Yes, Virginia, reading Fifty Shades of Grey in public, selling “personal massagers” and lubricants (which is done in major drug stores, discount stores, and supermarkets these days), or using certain words in the wrong way on the phone might mean you’re a criminal.*
* For discussions of case law on sex toys and similar matters, see the Volokh Conspiracy blawg (SFW) and this paper posted there. To learn why you can use four letter words in some ways and not others, see, e.g., Lofgren v. Commonwealth, 55 Va. App. 116, 684 S.E.2d 223 (2009).
The ambiguity of nudity (or at least of Virginia’s indecent exposure statute)
For a general discussion of the fight for equal rights for females to go topless – only men are able to be topless in public legally in all 50 states – see this Atlantic article and the website of advocacy group Go Topless (NSFW).
Virginia is labeled by Go Topless as one of 14 states that “have ambiguous state laws on the matter.” They’re right.
The operative statute is Va. Code § 18.2-387 (Indecent exposure), which provides:
Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.
This offense dates at least as far back as the 1700s, to the common law offense of “open and notorious lewdness.” See Moses v. Commonwealth, 45 Va. App. 357, 360-62, 611 S.E.2d 607, 609 (Va. Ct. App. 2005) (en banc).
Before analyzing this statute, it needs to be noted that state law is not the only operative law. Various Virginia localities have enacted local ordinances that regulate obscenity, public nudity, and other such matters. For example, see the City of Richmond’s City Code, ch. 66, art. VI, div. 2. Although such ordinances may at times improve on state law, they also add to the list of vague, dubious, and non-sensical provisions, such as Richmond’s ban on taking obscene photographs – including of one’s own body – for purposes of distribution (sec. 66-245) , and Richmond’s ban on underboob but not sideboob or excessive cleavage (sec. 66-249(a)). Yes, Virginia, taking an explicit selfie for your significant other is not merely unwise but a crime.
A key part of the problem with Virginia’s indecent exposure statute is its reliance on “obscene”, which is defined in Va. Code § 18.2-372 to mean “that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.”
Almost 50 years after Justice Potter Stewart’s memorable “I know it when I see it” standard (Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)), obscenity has not become clearer.*
* Justice Stewart was referring directly to what constitutes “hard-core pornography”, but Jacobellis was an obscenity case, and Justice Stewart described prior obscenity cases as “trying to define what may be indefinable.” The majority essentially agreed with Stewart on the problem, stating that “Application of an obscenity law … requires ascertainment of the ‘dim and uncertain line’ that often separates obscenity from constitutionally protected expression.” 378 U.S. at 187.
Virginia’s definition essentially tracks Supreme Court case law and has been upheld as not too vague to understand. See, e.g., Price v. Commonwealth, 214 Va. 490, 494, 201 S.E.2d 798, 801 (1974) (“The Virginia obscenity statute, as construed, gives fair notice of the meaning of obscenity. We believe a person of ordinary understanding would have no difficulty in determining what sorts of material would be regarded as obscene under the statute.”). Essentially, you’re responsible for knowing what a jury of your peers might find “shameful” or offensive, beyond the norm, and lacking in serious artistic value – thereby proving that there are times when the law is more concerned with reaching a desired result than being realistic.
If you doubt that there’s a fundamental vagueness to this area of the law that courts simply have chosen to ignore, ask yourself what kind of law we have when criminal convictions and First Amendment rights can turn on public opinion surveys. See, e.g., United States v. Pryba, 678 F. Supp. 1225, 1229 (E.D. Va. 1988) (“properly conducted public opinion surveys may be useful in gauging community standards for the purposes of determining whether the materials at issue are obscene”), affirmed by 900 F.2d 748, 757 (4th Cir. 1990).
In any event, even if what’s “obscene” is understandable, it is so only by studying the murky realm of obscenity case law. We disagree fundamentally with the assertion that people should “take comfort in” Justice Stewart’s “I know it when I see it” standard for deciding “the difficult question of describing obscenity.” United States v. Pryba, 900 F.2d 748, 757 (4th Cir. 1990). If understanding a statute requires learning an area of constitutional law that has bedeviled jurists and inspired disagreement for decades, that’s not a good thing.
Display or exposure
Continuing onward in § 18.2-387, we come to “display or exposure of his person, or the private parts thereof.” Leaving aside the childish wording (a statute that actually uses the phrase “private parts”?!), we suggest that the subject naughty bits are significantly (and unnecessarily) unclear.
Studying the case law, you would find that:
- Exposure of the penis is indecent exposure. See Morales v. Commonwealth, 31 Va. App. 541, 544, 525 S.E.2d 23 (Va. Ct. App. 2000).
- But even if the penis remains concealed under clothing at all times, what’s done under the clothes can still constitute indecent exposure. See Moses v. Commonwealth, 45 Va. App. 357, 364, 611 S.E.2d 607, 610 (Va. Ct. App. 2005) (en banc).
- Indeed, someone “[c]lad in a skimpy G-string which covered only his penis and anus, leaving his pubic area and buttocks exposed” can still be guilty of indecent exposure because “private parts” includes “not only the genitalia, but also the ‘anus, groin, breast or buttocks.’” Hart v. Commonwealth, 18 Va. App. 77, 79, 441 S.E.2d 706, 707 (Va. Ct. App. 1994).
On the other hand,
- Exposing one’s breasts may not be indecent exposure if done “in a ‘joking’ manner” and without “the outward signs of sexual interest, such as visible arousal or masturbatory behavior.” See Neice v. Commonwealth, 2010 Va. App. LEXIS 231, 10-12 (Va. Ct. App. June 8, 2010) (unpublished) (rec. no. 1477-09-3) [link to slip op.]. and
- Dropping your pants and running away from someone while yelling “wee wee wee” likewise may be merely “an extremely inappropriate and repulsive” prank, not indecent exposure, even if you told her just beforehand that she had “nice lips.” See A. M. v. Commonwealth, 2013 Va. App. LEXIS 46, 9-10 (Va. Ct. App. Feb. 12, 2013) (unpublished) (rec. no. 1150-12-4) [link to slip op.].
Crystal clear, right? And this is even before you get to any novel questions about things like wearing only body paint (Slate article).
Section 18.2-387 applies to an obscene display or exposure “in any public place, or in any place where others are present”. Those phrases have been interpreted as encompassing “places and circumstances where the offender does not have a reasonable expectation of privacy, because of the foreseeability of a non-consenting public witness.” Barnes v. Commonwealth, 61 Va. App. 495, 500, 737 S.E.2d 919, 921 (Va. Ct. App. 2013). In sum, one might say that we know public when we see it.
These problems can be solved (or at least greatly reduced)
We acknowledge that it’s easier to be a critic than a statute writer, particularly during the hurly burly of General Assembly. Nonetheless, these problems can be solved or greatly reduced. For example, here’s a far less ambiguous and more modern way that indecent exposure / public nudity could be prohibited:
Every person who intentionally displays or exposes his or her genitalia to another person without that person’s consent, or procures another to so display or expose that person’s genitalia, shall be guilty of a Class 1 misdemeanor. For purposes of this section, genitalia shall mean all or any part of: the anus, the perineum, the penis and scrotum, and the vulva.* In any criminal proceeding under this section, that an objectively reasonable person would have believed that consent was given, if proven, shall be a complete affirmative defense.
* If you want to include breasts in a gender neutral way, add the nipple and areola to the definition of genitalia, but then you also need to re-add the exception for breastfeeding.
We are not claiming this is a perfect statute. One can imagine fringe activists trying to make political, social, or artistic demonstrations through nudity and constitutional claims against prosecuting them. One can also imagine unusual or non-sensical applications of the law. There will always be some need for judges to interpret and apply the law to particular factual situations. But a public nudity statute like this does essentially all the same work as a vague indecent exposure statute like Virginia’s*, even very “progressive” jurisdictions have such public nudity statutes (see recent articles on San Francisco), and there’s very good reason to believe public nudity bans are constitutional. See this Volokh Conspiracy post on a recent incident, and the seminal SCOTUS cases of U.S. v. O’Brien, 391 U.S. 367, 377 (1968), & Texas v. Johnson, 491 U.S. 397, 403 (1989).
* For those worried about masturbation without exposure of the naughty bits themselves, that’s the subject of Va. Code § 18.2-387.1.
The larger point is that it’s possible to write a statute that isn’t fundamentally ambiguous and unclear, that the average person can understand, and that avoids many of the usual legal problem areas. We submit that a key part of the legislative branch’s role in openness and good government is enacting statutes that do those things.