In one of the earlier items in this series, I talked about rules of judicial construction, that is, the various techniques that are supposed to be used to interpret the law.
Today, I’m going to discuss another such rule, in a non-barefooting case.
While it is not about bare feet, it is bare something else: buttocks. This relates back to some of the work I described in The ACLU and Me. As I mention there, I’ve done work for the The Naturist Action Committee. As far as I’m concerned, men and women come in only two basic designs, and once you’ve seen one of each, you pretty much have it down.
After all, to quote that great Chinese philosopher, Wen Di: “Parts is Parts”:
What the Ohio statute does is criminalize the exposure of “private parts”. And those courts decided that, since dictionaries defined “private parts” as genitals, and breasts are not genitals, exposing them was not indecent exposure.
The Ohio cases cited an even earlier North Carolina case from the 1970s, State v. Jones, that had come to the same conclusion.
Note that none of these cases would fall under “How Judges Cheat”. This is judges taking the plain language of a statute and applying it. That is what they are supposed to do.
Now let’s move ahead to 1995, still in North Carolina. In that case, a guy named Mark Edward Fly was convicted of indecent exposure for mooning a women. Again, just as in Ohio, North Caroline criminalizes the exposure of “private parts”. On appeal, his conviction was reversed. That court said
In this case there is no evidence that the defendant exposed his genital organs and the trial court therefore erred in denying the defendant’s motion to dismiss.
And then it went to the North Carolina Supreme Court, State v. Fly (by now it is 1998).
In this case, the judges used the rule of judicial construction called We’re gonna get this guy. Barefooters may be pretty-well acquainted with it.
First, the court said that, even though the “victim” did not see Fly’s genitals, they were still exposed to the open air.
The State argues that the evidence was sufficient to survive defendant’s motion to dismiss because it is undisputed that defendant was naked from head to foot and that by definition defendant’s private parts were exposed, regardless of whether Ms. Glover actually saw them. We agree.
That’s right. He didn’t expose his private parts to the victim, they were exposed to the door he was facing. We’re gonna get this guy.
Then they went on to note that sometimes “private parts” does include the anus, and that they had previously so ruled. But they didn’t want to criminalize the mere exposure of buttocks because, as they noted,
However, given the posture of this case, we think it wise to note our agreement with the conclusion of the majority below that buttocks are not private parts within the meaning of the statute. To hold that buttocks are private parts would make criminals of all North Carolinians who appear in public wearing “thong” or “g-string” bikinis or other such skimpy attire during our torrid summer months. Our beaches, lakes, and resort areas are often teeming with such scantily clad vacationers.
Don’t want to lose that business. But still, We’re gonna get this guy.
Well, you see, the “victim” might have seen his genitals or anus.
In the present case, the jury could reasonably find from the evidence that defendant had exposed private parts, either his anus, his genitals, or both.
Of course, there was no evidence of this, as the Court of Appeals had noted. And convictions are supposed to be supported by evidence beyond a reasonable doubt.
They also found that the statute did not require that the private parts be exposed to a member of the opposite sex, only that they be exposed in the presence of a member of the opposite sex. And his private parts were exposed to a door, but in the presence of a member of the opposite sex.
We’re gonna get this guy is pretty clearly a case in which they made up their minds first, and then found a way to come to the conclusion they wanted.
It’s kind of similar to what barefooters discover in some stores. A manager already knows the conclusion he/she wants (throw out the barefooter), and then works his/her way through the options to justify it.
We’re gonna get this guy.