Commonwealth v. DeWalt

¶1concurring:

¶2¶1 I vote to join the majority as I believe it correctly analyzes the evidence and the lack of sufficiency to establish the charges against appellant. I write separately simply to express the view that attempts to delineate exposure on a sexual basis, as does appellant, and the differences that may be required to expose male versus female genitalia may make the statute inoperative and impossible of enforcement. Obviously, the history of this statute, which can be traced back to common law, ecclesiastical law for private indecency and the temporal courts for public indecency was directed historically to male behavior.

¶3¶ 2 Black’s Law Dictionary (7th Edition) defines indecent exposure as “An offensive display of one’s body in public, esp. of the genitals. Cf. lewdness; obscenity.” I do not believe exposure of the genitalia to the extent that they must be seen is an essential element of the crime. If the actor attempts to expose him/herself in public, even if the genitalia are not seen, knowing the conduct is likely to offend, affront or alarm, the elements of the crime are satisfied. The best example is when a man is *920urinating alongside a road (which is very common in some cultures). Despite attempts to prosecute for indecent exposure, and the full view of the male genitals by the victim (public), this is not considered to be indecent exposure. Commonwealth v. Rodriguez, 296 Pa.Super. 349, 442 A.2d 803 (1982). Also, neither indecent exposure nor its companion -offense, open lewdness, 18 Pa.C.S.A. § 5901, requires proof of intent to affront or alarm the general public. Commonwealth v. Back, 255 Pa.Super. 603, 389 A.2d 141 (1978) (defendant exposed himself to sisters in a neighboring house from his bedroom window over a period of months when he observed them going to their garage). Backheld that the exposure need not be in a public place so as to affront or alarm the general public but that it is sufficient to prove appellant’s knowledge of the likelihood his conduct caused affront or alarm to others. It is in these cases, similar to those wherein the United States Supreme Court opined that while obscenity cannot be clearly defined one will know it when one sees it, that surrounding factual circumstances become controlling and we must allow broader interpretation of the statute than appears on its face if the statute is to be enforced. At sentencing, the trial judge in Backrejected appellant’s contention to the effect that nothing more than an intended private indulgence (masturbation) was proved. This Court agreed with the trial judge’s statement that “What you were doing was as plain as the nose on your face.” Back, supra at 143. In other words, as we stated in Commonwealth v. Decker, 698 A.2d 99 (Pa.Super.1997), appeal denied, 550 Pa. 698, 705 A.2d 1304 (1998):

In deciding what conduct can be said to corrupt the morals of a minor “ ‘[t]he common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.’ ”

¶4Id. at 101 (citations omitted).

¶5¶ 3 While the law as to indecent exposure dates back to the Act of 1860, March 31, P.L. 382, § 44, it most recently was amended by the Act of 1995, March 31, P.L. 985, to provide among other things that exposure by either a male or female constitutes a crime. Having declared the act equally offensive, whether done by male or female, I do not believe legislative intent should be construed to require actual “viewability” of the genitalia, because exposure which “is likely to cause affront or alarm” is quite possible whether or not the genitalia are actually seen. Since the likely genesis of this activity is rooted in psychosocial behavior, consideration of the psychiatric condition to which the prohibition is directed might be relevant.

¶6¶ 4 The Diagnostic and Statistical Manual of Mental Disorders (4th Edition), published by the American Psychiatric Association, defines Exhibitionism under Sexual Dysfunction Not Otherwise Specified.

302.4 Exhibitionism

The paraphiliae focus in Exhibitionism involves the exposure of one’s genitals to a stranger. Sometimes the individual masturbates while exposing himself (or while fantasizing exposing himself). If the person acts on these urges, there is generally no attempt at further sexual activity -with the stranger. In some cases, the individual is aware of a desire to surprise or shock the observer. In other cases, the individual has the sexually arousing fantasy that the observer will become sexually aroused. The onset usually occurs before age 18 years, although it can begin at a later age. Few arrests are made in the older age groups, which may suggest that the condition becomes less severe after age 40 years[1]

¶7*921¶ 5 In criminal cases or juvenile cases where the behavior results in arrest, it usually becomes immediately clear whether such behavior constitutes criminal as opposed to inadvertent non-criminal behavior. In a larger metropolitan area such as Philadelphia or Allegheny County, a first step usually is to refer the actor to a behavior clinic for evaluation, which quickly screens out situational behavior which does not meet the required finding of intending or knowing the behavior would affront or alarm. Back, supra.As here, behavior within a circumscribed area perhaps intended to titillate companions who welcomed the activity, while inadvertently exposing the behavior to adolescents who might, under other circumstances, be charged with being “peeping toms”, fails to establish the requisite requirement to intend or cause affront or alarm. For the same reasons, the corruption charge would also fail. See Decker, supra.

¶8¶ 6 During the 1960s-70s period of protest by thousands of teens and young adults, “mooning” (dropping the trousers to expose the buttocks to the police) was a frequent troubling behavior which affronted the police and much of the public, but it could be likened more to an expression of first amendment rights, to protest within its context. Accommodations to the behavior had to be made if widespread harsh and punitive application of the indecent exposure-lewdness laws was to be avoided. Here, in its context, the indecent exposure and corruption charges appear to be excessive and do not further the ends of justice. I agree that the judgment of sentence should be vacated and the charges dismissed.