This is a delightful little statute. It bans “Lewdness involving a child” within the state of Utah.
I quote:
A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly:
(a) does any of the following in the presence of a child who is under 14 years of age:
(i) performs an act of sexual intercourse or sodomy;
(ii) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:
(A) in a public place; or
(B) in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child;…(iii and iv omitted)
I’m going to pare this down for you a bit:
A person is guilty of lewdness involving a child if the person [does not commit or attempt to commit a more serious sexual crime, but]:
(a) does any of the following in the presence of a child who is under 14 years of age:
(ii) exposes the female breast below the top of the areola
(B) in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child;
Got that? Exposing a female breast in the presence of a child, while in a private place, is a crime if anyone will “likely” feel affronted or alarmed.
Interesting little statute there. I’m sure it would never be abused by any misogynistic prosecutors in the United States. Especially not in a state as friendly as Utah, for Mormon Heaven’s sake! No, I’m sure that they would reserve it for egregious behavior like …
Tilli Buchanan, 27, … and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.
When her stepchildren, aged 9, 10 and 13, walked in, she “explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing,”
Well there was that consequential condition on the actus reus that involved some sort of distress. This doesn’t sound like quite enough to …
The charges were filed after the children’s mother told that authorities she was “alarmed”
Ah. So a mom hates her ex’s new wife enough that she got her arrested on charges of “lewdness” because she was doing the exact same thing as the ex (removing clothes itchy from drywall contamination), something that anyone might do in their own home. That makes more sense. Gotta protect the kids from seeing their step-mom’s boobies. At least the punishment should be proportionate given the wisdom of the Utah legislature and its…
If convicted, Buchanan faces imprisonment [for a maximum of 364 days – cd], fines up to $2,500 and the requirement to register as a sex offender for 10 years.
DAMN. Well, at least exposing your nipple in your own house isn’t a felo…
Lewdness involving a child is a third degree felony if at the time of the violation:
… (ii) the person has previously been convicted of a violation of this section.
So children walking in on you while your top is off in your own home is a misdemeanor the first time. The second time it happens, you can be punished
by an indeterminate prison term of up to five years, and a fine of as much as $5,000 [oh, and by the by, they make your sex offender registration permanent].
Well. I guess that is serious. They’ll probably lose their house too, with no one out of prison to work and pay the mortgage…
Though her husband was similarly clad, he was not charged with a crime.
But… but…
Fuckit. Utah, you are fucking horrible.
So, no breast-feeding in Utah?
@chigau:
Correct.
Quick! Someone bring a child, it’s a moral values emergency! I’ve seen someone breast feeding in a public place without a full-length modesty body bag.
… under circumstances the person should know will likely cause affront or alarm or with the intent to arouse …
Sounds (1) seriously vague and (2) not applicable to the case at hand.
Breast-feeding is perfectly fine in Utah, as long as no child under 14 is involved.
Back when I was 5 years old I lived in a home with no bath, no shower, and no hot water. That was nothing unusual, at that time only rich people had hot water and showers at home. This meant that in order to wash myself I had to go to a public bathhouse. I saw a lot of naked people there. Most of the time I was taken there by my parent of the same sex, but not always. This meant that a few times I also saw people who had body parts that I didn’t have.
I don’t get this public vs. private place distinction. If you non-alarmingly breastfeed a baby in public, it’s hardly more harmful to the child than private breastfeeding? As for public indecency, surely there are laws against that that don’t rely on the presence of children? Can you get dual charges?
The last time I saw public breastfeeding, it was a Swiss mother and toddler at a mountaintop hiking area on a hot sunny midsummer day. I thought both the child and the breast were being exposed to an alarming amount of UV radiation.
Utah laws are (if you don’t have to live under them) hilarious. For example, you could make a fantastic drinking game out of Utah’s liquor laws. Some of the things they forbid are really astonishing. I myself nearly strangled a waitress over a discussion of what they offered to drink in her establishment…. it was against the law for her to tell me they had wine available. ***I*** had to bring it up, despite asking her repeatedly what they had available and her giving me evasive answers.
so, why did they choose that wording ( the female breast below the top of the areola), as opposed to just specifying the nipple and areola? Is underboob, sideboob, and deep v-necks that much of an issue?
@lumipuna:
Yep. You can absolutely get dual charges. If you drive drunk and then hit someone, you can be charged for both the basic drunk driving and ALSO for the vehicular assault. If you’re topless in public and then a kid shows up, you can get prosecuted for the basic ungodliness as well as for the horrifying child abuse of allowing children to notice that humans exist in physical bodies. Certainly “Lewdness involving children” implies that (though I haven’t looked it up) there’s a lesser lewdness or public indecency statute, probably just called “Lewdness” (because that’s how legislators think) and almost certainly in the same statutory section. That there’s a basic statute is also implied by the fact that this crime is a Class A misdemeanor (or a felony on the 2nd offense). That carries with it any jail term that is less than 1 year (so up to 364 days), which is a pretty hefty penalty for the lowest version of this offense. It stands to reason that there’s a way to run afoul of Utah’s oppressive misogyny without being quite so bad as to be sent to jail for 11 months.
Okay, let’s stop relying in implications. The question has been asked. Research says…?
As I expected, that statute is also in Chapter 9, § 702.
Emphasis mine.
So, it’s illegal to change your top in your own bedroom standing at the door to your closet while getting ready to go out if the 19 year old you hired to babysit your kids pokes their head in to ask how late the kids are allowed to watch television.
I just love how changing your clothes in your own bedroom is the same crime as going to a public park after 10 pm with your buddy and taking turns fucking each other in the ass in front of unsuspecting strangers in order to purposely upset them and get off thereby.
Utah, you suck.
@Lochaber:
Because otherwise you could put a band-aid or electrical tape or a spangly, Las Vegas-style pasty over your nipple with the entire breast otherwise exposed.
Of course, that doesn’t mean that they **don’t** consider sideboob a horrifying threat to Utahans everywhere, but past wars against public nipples resulted in the proliferation of pasties which many legislatures (not just Utah’s) considered a violation in spirit of the statute. Thus the legislative effort to ban all boob. It’s likely, but not certain, that most Utah prosecutors would not bring a case against someone wearing a low-cut V-neck that exposes inner-edge boob. Still, it’s Utah. Who the fuck knows?
What utter (udder?) boobs they are about boobs.
Utah, FFS, get a sense of proporton and acept that people are, well, people and that’s natural and okay.
The naked truth.
What do they make of nude statutes and art there or don’t I want to know ..? (No,wait, mild curiosity, I do want want to know.)
Cuccinelli and the state seal of, Ithink, Virginia, rings some kinda bell here.
CD @10 – Thanks. I find your commentary very illuminating.
Now, I’m not sure I can properly parse the clause about “affront or alarm” in “lewdness”. It looks like it’s a necessary component in a private place, and requires either directly causing AOA in another person, or causing AOA in absent public via another person’s presence.
Anyway, apparently “lewdness involving children” is indeed derived from “lewdness” with only minimal modifications, resulting in somewhat odd function. Perhaps that explains my original question about breastfeeding in public place.
BTW, if you do breastfeed a baby in public but cover yourself with a tarp or whatever, does it count as a private place for the breast-child interaction? Or inside a parked car? In some secluded outdoor location? This is really off topic, just a distinction I’ve been sometimes wondering about.
@lumipuna:
If you’re experienced in statutory interpretation, this phrase does jump out at you as something that decidedly needs to be clarified through case law. It’s nice that you twigged on it b/c it says a lot of positive things about your ability to read law.
The fact is that you shouldn’t be able to parse that clause – or at least you shouldn’t assume that you are able to parse that clause without further research. That’s going to be something needing significant elaboration. It may be that a seemingly unrelated statute happens to include that phrase (perhaps in a disorderly conduct-type statute, or a stalking statute, etc.) and for most Utah purposes a case considering that other statute effectively defines the phrase for all criminal statutes in which it is used. But whether the case that defines this phrase is directly considering § 702 or not, you’re definitely going to have to read a judge’s treatment of the issue to get a good handle on this. With the right database access you could search the phrase in Utah criminal cases yourself, but this is really the kind of thing that can best be explained by asking a criminal defense attorney licensed in Utah.
Note that how those words are used outside of Utah probably has some effect on how they’re interpreted inside Utah, but the exact margins of what is or isn’t an “affront” will be unique to the jurisdiction, even if it shows similarities to the boundaries described by that word in other jurisdictions.
In one Utah case, (State v. Von Niederhausern, 427 P.3d 1277), the judge provided this jury instruction about the meanings of “affront” and “alarm”:
Despite the fact that the exact outlines and limits are incredibly poorly specified, an appeals court upheld this as an appropriate jury instruction that was not unacceptably broad. Although I’m no expert on Utah law, reading between the lines it appears that there is no significant case law directly on point of what things might be slightly embarrassing (for instance) and yet nonetheless not a sufficient “indignity” so as to be a basis for a legal “affront”.
Frankly, looking up this case makes me even more concerned about how broad this law is and how prone to misuse this language might be. After all, an “affront” is effectively codified by the Utah Court of Appeal in a manner that includes:
Seriously? “Values”? Any values”? The problem there is that the values of people differ so dramatically that that hypothetical deep v-neck almost certainly offends “values” of some number of people in Utah. It’s (IMNSHO) completely irrational, not to mention marginally fascist, to draw the boundaries of this statute so broadly.
You can also look up cases specific to § 702.5 (the earlier case was considering an actual sexual assault, prosecuted under § 702.2, I think). If you wanted, you could read Roosevelt City v Anderson (which is squarely within “affront or alarm”) or State v Titus (still pretty well within the bounds) or the case most likely to provide any illumination of the limits of the statute, State v Miller.
If you do read State v. Miller, you can skip to paragraph 4 for the facts, then down to paragraphs 11, 12 & 13 for discussion and judgement. In Miller, the case seems to turn significantly on how “unexpected” the nudity was, but it also turns on the fact that the child delivering the newspaper was “startled” and thought enough about what happened to report it to the police. Together the fact that a person’s foyer or front porch is a place where people expect nudity less than, say, a locker room and the child’s reaction caused the court to rule that accepting a newspaper delivery while wearing only a shirt that hangs only low enough to partially, not fully, cover one’s genitals is a situation that an adult “should know” would cause “affront or alarm”.
Miller might seem to lean in favor of the woman in the case discussed in the OP, Tilli Buchanan, since her stepchildren didn’t react with affront or alarm (and weren’t “startled”) but rather that the kids birth mom was the one “alarmed” and not by the nipple, but by the story about the nipple. Unfortunately, the Miller court ultimately found this brief exposure of part of his genitals to a child, with no sexualized behavior whatsoever, worthy of the maximum jail sentence – 364 days. The court then suspended 264 of those days so that Miller only had to serve 100 days unless the court had reason to revisit the sentence later (for example, if there was a probation violation or discipline problems in prison or a second offense that occurred before the maximum amount of time such a sentence is considered suspended has elapsed, etc.)
Given that the garage is a less likely place to find someone nude than, say, the bedroom, and given that accepting a newspaper delivery while partially nude was worth 364 days, I strongly suspect that Buchanan is at real risk of jail time. It’s horrifying, but there you are.
Wait. Does Utah not have locker rooms?
@WMDKitty:
I know, right?
It turns out that they’ve decided that since nudity is **expected** in locker rooms that it is therefore not “affronting” or “alarming”.
It seems that if they meant to condition the law on how expected or unexpected the nudity was, they could just say that.
…HOWEVER… the same law is used to prevent topless dancing. And yet, wouldn’t one **expect** boobs to be on display in what my childhood friends would have called a ‘Titty Bar’? Yes. Yes one would.
Their criteria obviously leave a lot to be desired.
Thanks, CD. I’m not experienced with law in in any way. I only took to re-reading and overthinking that clause because I’d initially misread it in a way that seemed blatantly nonsensical, and because I’m a pedant by nature.