Northern Exposure Not Lewd

The Minnesota Supreme Court has reversed a criminal conviction for indecent exposure

The facts in this case are short and undisputed: On July 28, 2021, the Rochester Police Department received a report that a woman was walking around a gas station parking lot with her breasts exposed. An officer responded to the call and saw Plancarte in the parking lot with her breasts exposed. The officer recognized Plancarte from two encounters earlier that week. During those encounters, the officer saw Plancarte exposing her underwear on one occasion, and her breasts and her underwear on another occasion.

The officer stopped Plancarte and asked her why she kept exposing herself. Plancarte replied, “I think Catholic girls do it all the time.” Plancarte then worried about how she would get home and stated, “I dance at the biker club. I’m a stripper.” The officer said, “Well, you can’t strip in the middle of public.” Plancarte responded, “Yeah, but they should account for me at the club, shouldn’t they?” The officer arrested Plancarte and later searched her purse, where the officer found a vial containing cocaine.

The appeal involved only the indecent exposure conviction

Plancarte petitioned this court for review of three issues: (1) whether female breasts are “private parts” under the indecent exposure statute; (2) whether the evidence was sufficient to prove that Plancarte “lewdly” exposed her breasts in violation of the statute; and (3) whether the statute violates the federal and state guarantees of equal protection under the law. We granted her petition.

The meaning of lewdly

Having declined to interpret “lewdly” to mean “obscene,” “indecently,” or “lustfully,” we are left with one reasonable interpretation of the term: of a sexual nature. We therefore conclude that “lewdly” refers to conduct of a sexual nature.

As applied here

Plancarte argues that the evidence was insufficient to prove that she “lewdly” exposed her breasts in the gas station parking lot because she did not commit an “overtly sexual act” at the time of her exposure. Plancarte emphasizes the district court’s finding that she “was not engaged in any type of overt public sexual activity or sexual contact with others in addition to the exposure itself.” The State asserts that the evidence was sufficient to prove lewd exposure because Plancarte’s “public exposure of her body was ‘openly lustful’ or ‘indecent’ which makes it ‘lewd.’ ” In making this argument, the State relies on the district court’s finding that Plancarte was an “exhibitionist,” Plancarte’s statements that “Catholic girls [expose their breasts] all the time,” and Plancarte’s assertion that she is a “stripper at a biker bar.”

We agree with Plancarte. For the reasons explained above, we reject the interpretations of “lewdly” that the State proposes in support of Plancarte’s conviction. And under the meaning of “lewdly” that applies to the indecent exposure statute, the State has not met its burden of proving that Plancarte’s exposure was lewd, because none of the evidence in the record suggests that her conduct was of a sexual nature. Although the police reports establish that Plancarte was charged with indecent exposure three times in one week for exposing some combination of her breasts and underwear, none of these reports provide any insight into the nature of her exposure during those incidents.

Moreover, the officer’s body-worn camera footage does not capture Plancarte engaging in any conduct of a sexual nature. Finally, Plancarte’s comment about being “a stripper” and her assertion that “Catholic girls [expose their breasts] all the time” are not evidence that her conduct in this instance was of a sexual nature. At most, Plancarte’s statements speak to her subjective mental state when she was exposing her breasts, which is irrelevant to determining whether her conduct was lewd.

Avoiding the breast issue

In conclusion, even viewed in the light most favorable to the verdict, the evidence presented in the stipulated-evidence trial does not prove beyond a reasonable doubt that Plancarte engaged in conduct of a sexual nature. We therefore hold that the State failed to present evidence sufficient to prove that Plancarte “lewdly” exposed her breasts in violation of the indecent exposure statute. Because this holding fully resolves this case, we need not interpret the statutory phrase “body, or the private parts thereof,” or decide the equal protection issue.

HENNESY, Justice (concurring).

I agree with the majority’s conclusion that the State failed to present evidence sufficient to prove that Plancarte “lewdly” exposed her breasts in violation of the indecent exposure statute, but I would also hold that breasts are not a person’s “body, or the private parts thereof” under Minnesota’s indecent exposure statute.

Concerns

criminalizing the exposure of female—but not male—breasts does not provide Minnesotans with adequate notice as to the conduct the indecent exposure statute prohibits because a binary approach to breasts fails to recognize the more nuanced physical realities of human bodies, whether they are intersex, transgender, nonbinary, or breast cancer survivors. Would a transgender man be prohibited from exposing his chest? What about a transgender woman who has had top surgery? Where do the chests of intersex and nonbinary persons fit within this dichotomy? And how do we treat the exposed chest of a breast cancer survivor who has had a mastectomy? Interpreting this statutory scheme as differentiating between male and female breasts is not sufficiently clear and definite to warn Minnesotans of what conduct is punishable. To avoid unconstitutional vagueness, I would interpret “private parts” to exclude breasts.

PROCACCINI, Justice (concurring).

I join in the concurrence of Justice Hennesy.

(Mike Frisch)