The criminal prosecution of a Utah woman who is accused of allowing her stepchildren to see her topless in her home has drawn national attention. Moreover, it adds to the ongoing debate here in Oklahoma about the use of criminal laws to legislate morality.
The American Civil Liberties Union joined in arguing in defense of the stepmom, advocating that her actions were identical to those of her husband, the father of the children. He was not subjected to the criminal charges that could send the stepmother to jail and compel her to register as a sex offender. In the same vein, Oklahoma officials appear, at least for the time being, reluctant to abandon enforcement of state law and local ordinances similar to others that have been struck down by courts in other parts of the country.
Do public indecency laws discriminate against women?
A state law making it a crime for a woman to expose the top of the areola so as to cause “affront or alarm” was used to lodge misdemeanor charges against the stepmother. The woman claimed that she and her husband removed their shirts while installing drywall in their garage at the time their children walked in on them.
The state charged the woman with lewdness involving a child after the children’s birth mother reported the incident. The ACLU joined in the woman’s defense to argue on behalf of the constitutional issues raised by her prosecution, including the following:
· The law criminalizes what many people consider to be normal behavior.
· Activities, such as being topless, should not be criminalized when carried out in the privacy of a person’s home.
· The law criminalizes behavior based solely on gender and moral stereotypes pertaining to exposure of the female breast.
The judge in the case reserved decision, so a ruling is not expected before the end of the year.
Federal court creates confusion about Oklahoma topless bans
The extent to which state and municipalities may enact public decency laws and ordinances has been the subject of court proceedings for decades. The U.S. Supreme Court ruled in 1991 that public decency laws infringing upon an individual’s personal rights would be upheld when a substantial government interest was proven to exist. The reasoning is that public order and morality should be protected.
Federal courts have split on the question of how far laws may go in singling out a woman’s anatomy as it pertains to laws and ordinances banning public nudity. Some circuits have consistently sided in favor of the statutes, while others have not. To illustrate, a decision from the U.S. Court of Appeals for the 10th Circuit created confusion about the laws in Oklahoma.
That Tenth Circuit decision involved a city ordinance in Colorado challenged on several grounds, including its application to only women and not men. The appellate decision upheld a district court ruling preventing the city from enforcing its ordinance because of its unequal application based upon gender. The Tenth Circuit justified its deviation from decisions in other federal circuits by holding that the ordinance reinforced societal stereotypes about women without a substantial government interest to justify enforcement of the law.
Initial news reports regarding the rule’s effect in Oklahoma created confusion. Media reports discussing the decision’s implications on Oklahoma laws initially caused some cities in the state to suspend enforcement of local bans against going topless in public. Most, if not all, have quickly reversed course.
Officials in Oklahoma City and other municipalities throughout the state sought guidance from the state Attorney General as to whether they could continue to enforce their ordinances. The ordinance in Oklahoma City, like the law in Colorado, exclusively references women in its prohibition on exposure of parts of a person’s breast. Regardless, the Oklahoma Attorney General concluded that the federal decision did not prohibit enforcement of similar laws in Oklahoma on the state level.
Defending an indecency charge
The decision to continue enforcing similar public decency laws in Oklahoma does not prohibit an equal protection violation defense for persons facing such charges. Enforcement of similar city ordinances may still be subject to dismissal. The confusion regarding the laws and the interplay between state and federal law reinforces the importance of consulting with a criminal defense attorney who is experienced in defending these types of cases.