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In Duvallon v. District of Columbia, 515 A.2d 724 (D.C. 1986), we held that under our indecent exposure statute, "the indecent exposure of human genitalia is the offense."
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No. 83-1468.
Submitted February 22, 1985.
Decided October 3, 1986.
Appeal from the Superior Court, Tim Murphy, J.
Mercedes Duvallon, pro se.
Inez Smith Reid, Corp. Counsel at the time brief was filed, John H. Suda, Principal Deputy Corp. Counsel at the time brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Michele Giuliani, Asst. Corp. Counsel, Washington, D.C. were on brief, for appellee.
Before PRYOR, Chief Judge, and NEWMAN and FERREN, Associate Judges.
When she was arrested and charged with indecent exposure in violation of D.C. Code § 22-1112(a) (1981), Ms. Duvallon was engaged in a protest directed to the Supreme Court of the United States because of what she deemed to be the denial of her federal constitutional rights, both by the courts of the United States and the courts of Florida. At trial, the government proved that Duvallon intentionally exposed her bare buttocks to public view. She was convicted as charged. She contends the statute, as written, does not interdict the public exposure of the bare buttocks. We agree and reverse.
D.C. Code § 22-1112(a) (1981) provides:
It shall not be lawful for any person or persons to make any obscene or indecent exposure of his or her person, or to make any lewd, obscene, or indecent sexual proposal, or to commit any other lewd, obscene, or indecent act in the District of Columbia. . . .
Duvallon also contends that the statute is unconstitutionally vague as applied to her and that it violates her First Amendment rights of free speech and religion. We do not decide these issues based on our holding.
The facts in the case are undisputed. On October 14, 1983, at approximately 10:45 a.m., Duvallon approached the plaza at the Supreme Court of the United States. She wore a cardboard sign around her neck which covered the front of her body from the neck to below the knees. Duvallon removed her clothing and began walking back and forth on the plaza with her cardboard sign held in front of her body. The sign contained the following message:
Petition for Rehearing to the Supreme Court of the United States:
This is the alleged "crime" for which I am facing an illegal incarceration of sixty (60) days in case no. 82-6534 after denial of certiorari. The opinion of the Florida First District Court of Appeal has firmly established my innocence. Contrary to the opinion of the Eleventh Circuit Court of Appeals there is no conflict to be resolved by the Florida Supreme Court.
Wherefore, in the name of Jehovah, God of Truth and Justice, I move the court to perform its function and grant my petition.
Respectfully submitted,
Duvallon was protesting the Supreme Court's denial of certiorari in a separate case where she was convicted of disturbing the peace in Florida for protesting in the same manner. See Duvallon v. Florida, 694 F.2d 725 (11th Cir. 1982).
Duvallon was arrested and charged with indecent exposure. Her case was heard by Commissioner Treanor in accordance with D.C. Code § 11-1732(c) (Supp. 1986). At trial the arresting officers testified that all they could see was a view of the back (including the buttocks) and sides of the body (including the sides of the breasts); they could not see genitalia or the front of the breasts. The officers also testified that at no time did Duvallon make any lewd or obscene gestures. The government called no other witnesses. She was convicted as charged.
D.C. Code § 11-1732(c) allows, inter alia, a hearing commissioner to make findings and recommendations in criminal cases with the consent of the parties. This becomes a final order of the Superior Court when approved by a judge.
Ms. Duvallon's actions offend individual senses of propriety, modesty and self-respect. But this court is not asked to decide whether or not Ms. Duvallon violated notions of personal modesty or propriety. Instead we are simply called upon to apply the rule of law and decide whether she broke the law. To answer this question, we search neither our own standards of morality nor standards of dress but rather the rule of law. An examination of decisional law, treatises, and basic principles of statutory construction leads inexorably to the conclusion that public exposure of the bare buttocks is not a violation of D.C. Code § 22-1112(a).
I
Insofar as is relevant to this appeal, D.C. Code § 22-1112(a) (1981) forbids anyone ". . . [from making] . . . any . . . indecent exposure of his or her person. . . ." To resolve this appeal, we must determine the meaning of the term "person", the exposure of which is prohibited.
In District of Columbia v. Garcia, 335 A.2d 217 (D.C. 1975), we held that the indecent exposure clause of § 22-1112(a) was a codification of the common law crime of indecent exposure and cited to 50 Am.Jur.2d Lewdness, Indecency and Obscenity §§ 17-18 (1970), and 67 C.J.S. Obscenity § 5 (1950). Garcia, supra, 335 A.2d at 222 n. 16. This construction is in accordance with principles long established by this court that "[i]n the absence of a statutory definition of the elements of a crime, the common law definition is controlling." Perkins v. United States, 446 A.2d 19, 23 (D.C. 1982); Clark v. United States, 418 A.2d 1059, 1061 (D.C. 1980); United States v. Bradford, 344 A.2d 208, 213 (D.C. 1975); see also Saunders v. First National Realty Corporation, 245 A.2d 836, 838 (D.C. 1968), rev'd on other grounds, 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970) ("No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.") (citations omitted).
In American Jurisprudence, which Garcia cites, the common law crime of indecent exposure is defined as "the wilful and intentional exposure of the private parts of one's body in a public place in the presence of an assembly. . . ." 50 AM.JUR.2d, supra, at § 17. Corpus Juris Secundum, which Garcia also cites, defines the offense as "the exhibition of those private parts of the person. . . . The purpose of such laws is to protect the public from shocking and embarrassing displays of sexual activity. . . ." 67 C.J.S. Obscenity § 10 at 49-50 (1978). Further, "[c]onviction of the offense requires proof [that one] . . . intended by his conduct to direct public attention to his genitals. . . ." Id. § 10 at 50 (emphasis added).
The common law of the District of Columbia consists of the common law of Maryland and the British statutes in force in Maryland in 1801, unless inconsistent with provisions of our codes. Perkins, supra, 446 A.2d at 23; see also D.C. Code § 49-301 (1981). The Maryland courts have held that "[t]he authorities . . . cited are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one's body in a public place in the presence of an assembly." Dill v. State, 24 Md. App. 695, 697, 332 A.2d 690, 693 (1975).
This language is identical to the definition quoted from 50 AM.JUR.2D § 17, supra.
Dill cites to the following authorities: L. HOCH-HEIMER, CRIMINAL LAW § 741, at 453 (1st ed., 1897); CLARK MARSHALL, LAW OF CRIMES, § 11.08, at 779 (7th ed. 1967); R. PERKINS, CRIMINAL LAW 395-96 (2d ed. 1969); 2 WHARTON'S CRIMINAL LAW AND PROCEDURE § 784, at 625-27 (Anderson ed. 1957); Annot., 94 A.L.R.2d 1353 [1964]. Annot., 93 A.L.R. 996 [1934]. A review of these authorities shows they are properly cited by the Dill court.
Neither Dill nor other Maryland decisions define "private parts" within the meaning of the common law offense of indecent exposure. Thus, we must examine other common law authorities to define this term.
We note that in all of our opinions dealing with the indecent exposure statute, where the conduct involved can be discerned from the opinion, exposure of genitalia was present. See, e.g., Selph v. District of Columbia, 188 A.2d 344 (D.C. 1963); Hearn v. District of Columbia, 178 A.2d 434 (D.C. 1962); Campbell v. District of Columbia, 172 A.2d 557 (D.C. 1961); Peyton v. District of Columbia, 100 A.2d 36 (D.C. 1953); Davenport v. United States, 56 A.2d 851 (D.C. 1948).
II
English common law cases compel the conclusion that indecent exposure was limited to the exposure of genitals. These cases repeatedly state that the defendant exposed her or his "private parts" or "person." See, e.g., Reg. v. Webb, 3 Cox C.C. 183 (1848) (indictment states that Webb did "indecently and wilfully expose and exhibit his private parts, naked and uncovered, in the presence of Mary Ann . . .") Reg. v. Thallman, 9 Cox C.C. 388 (1863) (indictment charges that Thallman did "indecently expose his person and private parts naked"); see also 4 W. BLACKSTONE, COMMENTARIES *169 ("persons wilfully, openly, lewdly, and obscenely exposing their persons in any street or public highway, or in the view thereof, or in any place of public resort with intent to insult any female" were rogues and vagabonds) ( quoted in Dill v. State, supra, 24 Md. App. at 698, 332 A.2d 690, 693 n. 2).
Significantly, the word "person" has been held to be a euphemism for the penis. See Evans v. Ewels, [1954] 2 All E.R. 22. In Evans, the Queens Bench division was faced with the question of whether or not Evans' exposure of his lower abdomen near his genitals constituted indecent exposure under section four of the Vagrancy Act of 1824. The Vagrancy Act prohibits a man from "wilfully, openly, lewdly and obscenely exposing his person . . . with intent to insult any female." Any man guilty of this crime "shall be deemed a rogue and a vagabond." The court found that the exhibition of the lower abdomen was not indecent exposure.
In Norton v. Rylands (1971), 3 C.L.Y. para. 61, the Devonshire Quarter Sessions court came to the opposite conclusion. In Evans, the Queen's Bench declined to follow this decision, which was arrived at by a lower court.
It seems to me that at any rate today, and indeed by 1824, the word "person" in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for penis.
Evans v. Ewells, supra, 2 All E.R. at 24. The Evans holding has considerable support in English caselaw. In Reg. v. Wood, 14 Cox C.C. 46 (1877), Wood was convicted of raping Emelia Wild. Wild testified "how Wood had come into the house, had committed this assault upon her by insertion of his person . . . ." (Emphasis added). In Reg. v. Orchard and Thurtle, 3 Cox C.C. 248, 251 (1853), the court held that in a public urinal, "[e]very man must expose his person who goes there for a proper purpose." (Emphasis added). In Reg. v. Wellard, 15 Cox C.C. 559 (1884), Wellard took seven or eight girls down to a marsh and "exposed his person. . . ." (Emphasis added). When some local boys came upon this scene, "[the] boys saw nothing improper, as the prisoner had turned round on their approach, and was lying on his stomach." Id. at 560. It can easily be inferred from this factual statement that Wellard exposed his penis to the young girls. See also Reg. v. Thallman, supra, 9 Cox C.C. at 389 ("He was almost entirely naked, and exposed his person.") (emphasis added); Reg. v. Eliot, 169 Eng.Rep. 1322 (1861) (defendants fornicated in public and "unlawfully, wickedly and scandalously did expose . . . the bodies and persons of them") (emphasis added); Reg. v. Reed, 12 Cox C.C. 1, 2 (1871) (defendants unlawfully and indecently exposed "their bodies and persons naked and uncovered" in front of ladies) (emphasis added).
In light of this language, it is significant that our statute remains unchanged since its adoption in 1892. See 27 Stat. 324, ch. 320, § 9 (July 29, 1892).
The Evans opinion suggests that the common law crime of indecent exposure was not limited to genital display, unlike the Vagrancy Act. For support of this proposition, the court quoted a passage from SMITH HOGAN, CRIMINAL LAW 319 (2d ed. 1969).
However, an examination of Smith Hogan's sources and pre-Victorian case law reveals no support for this proposition. CRIMINAL LAW states:
It has been suggested, though there is no authority on this point, that there is another limitation on this [Vagrancy Act] offence which is not applicable to the common law offence — that is, that "person" means "genital organ" and . . . "the exposure of the backside is not within this section."
SMITH HOGAN, supra at 319 (quoting RADZINOWICZ, SEXUAL OFFENCES 427 (1957)). Nothing in Radzinowicz's SEXUAL OFFENCES supports the proposition that the exposure of the buttocks was a common law offense or that "person" had a broader common law meaning than the Vagrancy Act definition. Significantly, in their next edition, Smith Hogan revised this section to read simply: "[u]nlike the common law offence this crime is limited to exposure by a male to a female and requires a specific intent to insult. The word 'person' means 'penis'. . . ." SMITH HOGAN, CRIMINAL LAW 356 (3d ed. 1973). This edition completely dropped the earlier suggestions that the common law crime of indecent exposure included exposure of the buttocks and that "person" had a broader meaning at common law.
Moreover, Blackstone's use of the word "person" implies that it was used as a euphemism for penis at a much earlier time. See supra text at 726. It should also be noted that in England, the "common law supplies a certain number of general principles and leading definitions of crimes." 2 STEPHENS, A HISTORY OF CRIMINAL LAW IN ENGLAND 188 (1883). Ordinarily, the statutory definition of a crime is the same as the common law definition. In the absence of authority to the contrary, it can reasonably be inferred that the Vagrancy Act's definition of "person" is the same as its common law definition.
It is also significant that in some of the English cases using the term "person" the defendants were indicted for the common law crime of indecent exposure and not under the Vagrancy Act. See Reg. v. Orchard Thurtle, supra, 3 Cox C.C. at 248; Reg. v. Thallman, supra, 9 Cox C.C. at 388.
American common law cases are in accord with those of England. In State v. Moore, 194 Or. 232, 238, 241 P.2d 455, 459 (1952), in discussing the term "private parts" as applied to a female, the court said: "It is hornbook law that whenever the term 'privates or private parts' are used as descriptive of a part of the human body, they refer to the genital organs." In Jones v. State, 7 N.C. App. 166, 171 S.E.2d 468 (1970), the court held that private parts means genitals, those portions of the human anatomy used in the reproductory process. Accord State v. Crenshaw, 61 Haw. 68, 69, 597 P.2d 13, 14 (1979); Martin v. State, 534 P.2d 685 (Okla.Crim.App. 1975); State v. Dennison, 72 Wn.2d 842, 435 P.2d 526 (1967); Pendell v. State, 158 Tex.Crim. 119, 253 S.W.2d 426 (1952).
Our statute refers to the ". . . indecent exposure of his or her person. . . ." (emphasis added). It is the indecent exposure of the comparable portions of the male and female anatomy that constitutes the crime. In other words, the indecent exposure of human genitalia is the offense. Since Ms. Duvallon did not expose her genitals, she did not violate § 22-1112(a). Reversed and remanded for entry of a judgment of not guilty.
To construe the statute as urged by the District of Columbia would raise an issue of vagueness. See Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (A "deprivation of the right of fair warning can result not only from vague statutory language but also from unforeseeable and retroactive judicial expansion of narrow and precise statutory language.").
The circumstances of this case present a new question of statutory interpretation arising under the District of Columbia indecent exposure statute, D.C. Code § 22-1112(a) (1981). By its holding, the court employs a narrow anatomical definition of the behavior in question. Because I adopt a broader standard, I dissent.
Appellant, Ms. Duvallon, in broad daylight, approached the plaza of the Supreme Court, fully clothed, with a sign hanging around her neck. She undressed completely, and then walked back and forth, in front of the Supreme Court, nude except for a sign which prevented a frontal view of her breasts and her genital area. The sides of her breasts, as well as her entire buttocks were at all times clearly visible to the police officers and other persons in the immediate vicinity.
Appellant asserts that she cannot be prosecuted for this conduct because the District's indecent exposure statute is merely a codification of the common law, and under the latter, the prohibition against indecent exposure purportedly does not preclude a person from intentionally exposing his or her buttocks to public view. More, specifically, it is urged that the scope of our indecent exposure statute is inextricably intertwined with the most common definition of "private parts," such that "private parts" is deemed synonymous with genitals.
At common law the crime of indecent exposure is defined to include any "exposure of the entire person, or parts that should not be exhibited." Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 580 (1957); see State v. Borchard, 24 Ohio App.2d 95, 99, 264 N.E.2d 646, 650 (1970); 67 C.J.S. § 10, at 49 ("indecent exposure is the exhibition of those private parts of the person which instinctive modesty, human decency, or self-respect requires shall be customarily kept covered in the presence of others"). The underlying purpose of the prohibition against indecent exposure is straightforward: to protect the public from being confronted in public places by annoying, shocking, or embarrassing displays of nudity or sexual activity. See Hearn v. District of Columbia, 178 A.2d 434, 438 (D.C. 1962); 67 C.J.S. § 10, at 49; II J. BISHOP, NEW CRIMINAL LAW § 1125, at 671 (8th ed. 1892).
The common law of the District of Columbia consists of the common law of Maryland and the British statutes in force in Maryland in 1801, unless inconsistent with provisions of our code. Perkins v. United States, 446 A.2d 19, 23 (D.C. 1982); see also D.C. Code § 49-301 (1981).
Many of the decisions in this area have resolved related but different questions: whether the exposure of genitals, specifically, was a violation of law, see Davenport v. United States, 56 A.2d 851 (D.C. 1948); Truet v. State, 3 Ala. App. 114, 57 So. 512 (1912); whether the offensive conduct was sufficiently open to public view, Messina v. State, supra; Gilmore v. State, 118 Ga. 299, 45 S.E. 226 (1903); and lastly whether the conduct involved the requisite intent, Davenport v. United States, supra, 56 A.2d at 852; Case v. Commonwealth, 313 Ky. 374, 231 S.W.2d 86 (1950).
Further, it should be noted that in contrast to the statutes interpreted in most of these cases, D.C. Code § 22-1112(a) does not speak of "private parts" at all, but by its language prohibits an individual's making of "any obscene or indecent exposure of his or her person" (emphasis added).
Thus, this case presents, for the first time in the District of Columbia, the question whether the naked exhibition of parts of the body, other than genitalia, constitutes unlawful exposure within the meaning of our statute.
As the opinions in this instance reflect, reasonable minds may differ as to how our statute should be interpreted. Given the common law origin of the exposure prohibitions and the general purposes of such statutes, I find nothing in the long line of cited decisions which requires us to equate the exposure of one's "person" as meaning only the exposure of genitalia. Indeed, the latter behavior represents the most extreme form of violation.
In my view the broader interpretation of the statute is consistent with the common law, preserves the legislative intent, and gives adequate notice of the behavior which is proscribed.
Under the circumstances of this case, I would affirm.