¶1dissenting.
¶2Although Walter Geoffrey Hart’s conduct was indecent, vulgar, and bizarre, the evidence did not prove either that his conduct was proscribed by Code § 18.2-387 or that his conduct was obscene.
¶3Code § 18.2-387 states as follows:
Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor.
¶4The garment that Hart wore was described as a G-string or a bathing suit. The record contains no indication, however, that Hart’s garment would have been inappropriate or unlawful if worn on a beach or at a place where sunbathing was appropriate. Hart does not dispute, however, that the garment was skimpy and did not cover his buttocks. The record establishes that the garment was inappropriately worn in a retail store and was offensive to the salesperson who watched Hart deliberately release his shorts to display this garment and his buttocks.
¶5Although Hart’s buttocks were fully exposed, his genitalia and anus were covered by the garment. His exposed buttocks are the only body part at issue in our determination whether the statute covers his conduct. I do not agree with the majority opinion’s conclusion that buttocks are included within the scope of the term “private parts” contained in Code § 18.2-387. The majority reaches its conclusion by equating the statutory term “intimate parts” with “private parts” and by drawing inferences from the statutory definition of “nudity.”
¶6The statute that we are required to interpret and apply uses terms that are derived from the common law. The word “person,” when used in connection with exposure of the body, has traditionally been considered in the common law to be a “euphemism for the penis.” Duvallon v. District of Columbia, 515 A.2d 724, 726-28 (D.C. 1986). In addition, the term “private parts” has a generally accepted meaning, also derived from the common law, and refers to male or female genitalia. State v. Jones, 171 S.E.2d 468, 468-69 (N.C. App. 1970). Those common law terms are not gen*82erally understood to include an individual’s buttocks. See Duvallon, 515 A.2d at 728. See also State v. Crenshaw, 597 P.2d 13, 14 (Haw. 1979) (female breasts are not private parts or genitalia).
¶7Neither Code § 18.2-67.10(2), which defines “intimate parts” for purposes of criminal sexual assault, nor Code § 18.2-390(2), which defines “nudity” for purposes of restricting sale of certain items to juveniles, changes the accepted common law definitions of “person” or “private parts.” Indeed, it is reasonable to conclude that the legislature defined the terms “intimate parts” and “nudity” so as to give a broader meaning than would have been the case if the statutes had used the terms, “person” or “private parts.” Hart did not expose his genitalia; therefore, his conduct did not bring him within the statute.
¶8Moreover, although the statute is styled “Indecent exposure,” a conviction under Code § 18.2-387 may not be sustained unless the proof establishes that the “display or exposure” was “obscene.” Mere nudity is an insufficient basis to declare conduct obscene. Price v. Commonwealth, 214 Va. 490, 493, 201 S.E.2d 798, 800, cert. denied, 419 U.S. 902 (1974). Indecency is different than obscenity. FCC v. Pacifica Found., 438 U.S. 726, 739-41 (1978). Moreover, proof that conduct was indecent is insufficient to prove that it was obscene. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A salient distinction between indecency and obscenity is the element of prurience. Pacifica Found., 438 U.S. at 740. See also Miller v. California, 413 U.S. 15, 24 (1973); Roth v. United States, 354 U.S. 476, 487 (1957). To establish that an act is obscene the proof must establish a “prurient interest in sex,” Code § 18.2-372, and not just sexual desires. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498-99 (1985).
¶9The majority, though conceding that Hart’s words are not themselves obscene, concludes that his words provide the necessary indicia to establish that his conduct was obscene. “[S]ex and obscenity are not synonymous.” Roth, 354 U.S. at 487. “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications, 492 U.S. at 126. Hart’s comments, as was his conduct, were vulgar and indecent, but his comments and his conduct did not rise to the level of an obscenity. Though his comments were certainly offensive to the *83woman to whom he spoke, even in conjunction with his conduct, they did not satisfy the test of prurience.
¶10In upholding this conviction, the majority equates indecency with obscenity. I dissent.