CHP charge of PC 314 won't stick to bare political breasts




(1) Will the Sacramento district attorney try to prosecute two topfree women protestors
for PC 314 (as charged by California Highway Patrol)?


(2) According to SF Chronicle, the CHP cited Sheryl Glaser and Renee Love for
"indecent exposure", when they bared their breasts at a political demonstration, Nov. 7.

[ http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/11/08/BAGIEFKN801.DTL&hw=topless&sn=001&sc=1000 ]

In this context, "indecent exposure" presumably means a violation of section 314 of the
California Penal Code, which forbids one to "wilfully and lewdly" expose one's body,
"or the private parts thereof".
[ I quote from fallible memory; so please double-check.]


(3) A charge of PC 314 doesn't fit the bare facts of Nov. 7; for several reasons.

(A) Under PC 314, mere nudity isn't lewd, without aggravating factors.
In 1972, the California Supreme Court handed down a decision called IN RE SMITH,
about a male nudist who had been arrested while sunbathing at an isolated beach
which was traditionally, tho (then) furtively, used by nude sunbathers. If Smith had noticed police approaching, he would have hastily covered up, as others did; but he had fallen asleep.

On appeal, his lawyers argued that lewdness was a necessary element of the crime denounced by PC 314. Local authorities argued that public nudity was inherently lewd, prima facie,
without any further need for a prosecutor to prove lewdness.

California's Supreme Court sided with Smith. Since 1972, to prove a charge of PC 314,
the district attorney must show not only that the person was naked (or at least exposing "private parts"),
but also that the exposure was done lewdly.
Indeed, male exhibitionists often make their lewd intent crudely obvious, by their words or actions;
behavng quite differently from most sunbathers, let alone from most political demonstrators.

Could the district attorney of Sacramento County convince a jury that these two bare-breasted
political protesters were motivated by lewd urges? Not likely.
Indeed, I would be surprised if the D.A. even bothers to file a charge of PC 314 in this case.


(B) Secondly, just what does the term "private parts" mean in the 21st century
-- or even in the 19th century?
Clearly this phrase includes genitals.
But does "private parts" also include breasts?
And if it includes breasts,
does it include only those breasts which are attached to women?


(4) Please note that I haven't begun to address any questions of free speech, symbolic speech, political speech, et cetera.
If such broad issues need to be raised in this case, I hope the protestors will base their constitutional arguments on our California state constitution, rather than on federal grounds.



Tortuga Bi LIBERTY,
for Senior Unlimited Nudes (SUN) of San Francisco
8 November 2005, Special Election Day

nakity-owner [at] yahoogroups.com

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