Elements of Exposure, Indecent and Otherwise

[Doc Hudson]

Other comments on this forum, such as Ron's thread about the modesty challenge involved in changing a tire kilted, and others, as well as my wife's oft repeated fear, prompt this thread.

The topic ladies and gentlemen is exposure, i.e. inadvertently revealing what is or is not worn under the kilt.

My wife insists that I wear underwear when we are out together because she fears an inadvertent flash will result in arrest for indecent exposure. Another member of this forum made a similar comment.

I am of the opinion that an inadvertent flash caused by a wind gust, careless sitting, or the exertion of changing a tire would not result in arrest, or citation. It is my opinion that an indecent exposure requires lewd or lascivious intent. Accidental exposure is just that, an accident and nothing more than a source of embarrassment for the exposed and hilarity to the spectators.

I would appreciate the opinions of the lawyers, laymen and lawmen of this forum. Do you agree or disagree and why.

[millar]

Doc
You are correct that in most states to be convicted of indecent exposure the prosecutor has to prove some sort of intent by the person doing the exposing. usually the intent to alarm or titilate ( what a great word)

But a Conviction and arrest are two different things. Convictions come as a result of a trial and/or a plea in front of a law trained judge. Arrests depend on the police officer, who has a wide latitude in most situations, and the circumstances.

For instance an inadverant flash in front of an all girls catholic high school is likely to result in an arrest and probably a conviction An inadverant flash on the highway changing a tire will probably not get you a ride in a police car.

A couple of years ago I was watching a parade with my friend and his wife, we were standing next to a cop. One of the kilted marchers had had a bit too much to drink and fell over revealing his secrets to the world. My friends wife just started laughing and said "Well that answers that question." He did not get arrested and continued the march and the cop never batted an eye.

[Blu (Ontario)]

... I would appreciate the opinions of the lawyers, laymen and lawmen of this forum. Do you agree or disagree and why.

Doc... I am most certainly none of the above and appologize for speaking out of turn, but I would like to make a couple of comments.
1. Some women and lots of teenage girls I see around our area are wearing skirts so short(a few inches below the crotch), it is an almost guarantee that at some point there will be a bit of exposure... whether by wind or posture. It's a fashion statement based on blatant titilation. They certainly don't seem concerned about legalities and I have yet to here of a woman being arrested for it. Underwear or not. (of course, who's lookin')

2. I have experienced strong winds and updrafts in both medium and heavyweight kilts and never had a complete exposure. Wearing a weighted sporran makes this near impossible.

Is there a double standard here or do kilt wearers just worry about this sort of thing more. While I'm sure inadvertant exposures do take place from time to time, we are not flashers... we are gentlemen! (mostly )

blu

[Archangel]

In a general way, the fact that you've discussed it, and referred to it here, takes away your defence of accident. I'm no expert, just taken a few law courses at university level and elsewhere. That's the hidden information when we read about liability settlements. For example; the case with the McDonald's hot coffee and the lady brought about a lot of laughs. What the comedians and most of the press did not bring out was that, not only did McDonalds serve coffee hotter than coffee specialty places and she suffered third degree burns, but hers was the umpteenth similar accident (I forget the actual number). The ruling was based on McDonald's proven awareness and their not doing anything about it. Ford's SUV settlement was lost based on a similar argument.
Probably, best to go with your wife's point of view (how big a gun does she carry? joke)

Related to this, in Canada, a recent ruling decided that if it was in your house but visible to outside, you're still in the clear. (Before there's too much flak about this, I can see the judges' general ruling on this but disagree intently with the decision on the specific incident.)

[Streetcar]

The law in the State of Washington:

"A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure."

The key phrases here are "intentionally," "Knowing" and "cause reasonable affront or alarm."

Let me present two possible scenarios:

1. While walking down a public street, a stray gust of wind blows a man's kilt, briefly revealing Scotland's Pride to any who happen to be looking at his crotch at that exact second.

2. While standing in a playground, supervising a dozen or so 9-year-old girl scouts on the joys of kite flying, a stray gust of wind blow a man's kilt, revealing the same.

In both scenarios there was no "intent" to make an "open and obscene exposure." However in the second scenario, it is reasonable to assume that such and exposure would be possible - even likely.

In the first scenario, there may be "affront or alarm," but not necessarily an "unreasonable" amount.

In the second scenario it is likely that the incident would cause a VERY unreasonable amount of "affront or alarm." In fact, though the kilt wearer did not directly expose himself by his own actions, a "reasonable person" would expect that an exposure in that circumstance is likely and exceptionally alarming to those who witness the exposure.

Laws vary by jurisdiction, but I would expect something similar on most books.

The bottom line is common sense. If it's a legitimate accident, it's not a problem. If it's an accident where you really should have known better, it might be an issue.

[taipei personality]

I am not an attorney, nor do I play one on TV.

In US common law there is the concept of mens rea (c.f. http://en.wikipedia.org/wiki/Mens_rea ) that states that a person much possess some degree of a guilty mind, as defined by a jury of his or her peers, in order to be guilty of an offense. Were I on the jury, none of the scenarios described would rise to the level of mens rea.

[Shay]

If a woman flashing a bit of breast while feeding her child is not indecent exposure, I don't see why the sight of a willy that was clearly an accident would make people run and scream bloody murder.

I think the story about the parade has the right of it- as long as cop doesn't think you're doing it on purpose or to make people uncomfortable, you're in the clear. I hate to say it, but here in America we've heard so many jokes and seen so many scenarios where a men goes off kilter from a breeze, it would be about the same shock value as seeing a man in a kilt in the first place. Maybe less so- we're prepared to see the blue ribbon winner under the kilt, it's the kilt that's the surprise in the first place!

[KMacT]

I am not an attorney...In US common law there is the concept of mens rea (c.f. http://en.wikipedia.org/wiki/Mens_rea ) that states that a person much possess some degree of a guilty mind, as defined by a jury of his or her peers, in order to be guilty of an offense. Were I on the jury, none of the scenarios described would rise to the level of mens rea.

I am an attorney, and I'd just like to jump in to say that while all this discussion is fine (perfectly fine), please don't *rely* on any of it. It's just the opinions expressed by relative strangers who may or may not know what they are talking about, or may or may not be fully explaining everything that they do know. Grain of salt and all. For example, one can be convicted of a crime in Canada and many many countries without ever facing a jury (I don't know of the United States, but I think there is a jury trial by right). And the whole concept of means rea is primarily a product of the criminal law. It's possible that one could be charged with an offence that is not "criminal" in nature but still face significant penalties.

As I just said in another post, this is free advice, and worth every penny!

Kevin

[GatorUK]

As I see it there are 3 options:
1. Don't worry about it and go regimental. (My option)
2. Remember mom's admonition to always wear clean skivvies in case of an accident.
3. Wear pants.

[ZelieMike]

Or, just avoid states were its really hot, the state police wear very dark sunglasses and cowboy hats, are named "something" Lee, and ask "Just what are ya'll think you wear'n boy?".



ZM