The Massachusetts Appeals Court had to do just that, as part of a thought exercise to help it conclude that a man who wore only sheer white compression shorts into a Target store in 2011 was, in fact, guilty of exposing himself.
John Coppinger appealed his conviction for open and gross lewdness and lasciviousness by arguing the state law on the matter was unconstitutionally vague and that, in any case, he wasn't exposing his genitals because they were covered by cloth.
But the court noted testimony from store workers that they could see "the fleshy color of his skin" through his sheer shorts, that he was clearly not wearing underwear and that his semi-erect penis and his testicles were pretty rampant.
The court said that laws do not have to explain every single last possible occurrence of an act if your basic reasonable man understands what the law means. And the state law on open and gross lewdness and lascivious behavior meets that test, the court ruled. Assuming the prosecution case was correct, then:
[T]here is no question whatsoever that the defendant displayed his genitals and buttocks through his compression shorts. There is also no question that exposing one's genitals or buttocks, in conjunction with the other elements of the crime, violates the statute.
However, as the appeals court notes, the Supreme Judicial Court has held that to find somebody guilty of the crime, prosecutors must prove "the defendant exposed his or her . . . genitals, buttocks, or female breasts to one or more persons." So can one be guilty of exposure even when the naughty bits are covered by fabric?
The appeals court continues:
Accordingly, the crux of our inquiry is whether exposure requires a naked display or whether it is possible to expose a body part through a covering. We turn to "common understanding and practices" to assist our analysis. ... We consider the hypothetical scenario of a person wearing shorts made from cellophane instead of the material that the defendant wore. We think that such conduct certainly falls within a common understanding of exposure, as the person's genitals and buttocks would be completely visible, regardless of the covering. We see no meaningful difference between wearing cellophane shorts and the defendant's choice to wear shorts that were sufficiently revealing to a degree that the public could see the "flesh color of his skin," his buttocks, and his genitals. While we are sensitive to the fine line between an individual's freedom of expression and the criminal nature of the conduct prohibited by the statute, the defendant's conduct in this case went far beyond the reasonable bounds of permissible expression.
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