First Substitute S.B. 244

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PUBLIC NUDITY PROHIBITION
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Craig L. Taylor
5 AN ACT RELATING TO CRIMINAL CODE; PROVIDING DEFINITIONS; MODIFYING THE
6 ELEMENTS OF LEWDNESS AND GROSS LEWDNESS; AND MAKING TECHNICAL
7 CORRECTIONS.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 76-9-702, as last amended by Chapter 137, Laws of Utah 1996
11 Be it enacted by the Legislature of the state of Utah:
12 Section 1. Section 76-9-702 is amended to read:
13 76-9-702. Lewdness -- Gross lewdness -- Exceptions.
14 (1) For purposes of this section "nudity" means the showing of:
15 (a) the human male or female genitals, pubic area, or buttocks with less than a fully opaque
16 covering;
17 (b) the female breast with less than a fully opaque covering of any portion of the breast
18 below the top of the nipple; or
19 (c) covered male genitals in a discernibly turgid state.
20 (2) (a) A person is guilty of lewdness if the person under circumstances not amounting to
21 rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attempt
22 to commit any of these offenses, performs an act of sexual intercourse or sodomy, [exposes his or
23 her genitals or private parts,] appears in a state of nudity, masturbates, engages in trespassory
24 voyeurism, or performs any other act of lewdness:
25 (i) knowingly or intentionally in a public place; or
26 (ii) under circumstances which the person should know will likely cause affront or alarm
27 to, on, or in the presence of another who is 14 years of age or older.

1 [(2)] (b) Lewdness is a class B misdemeanor.
2 (3) (a) A person is guilty of gross lewdness if the person under circumstances not
3 amounting to rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy
4 upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child,
5 aggravated sexual assault, or an attempt to commit any of these offenses intentionally touches,
6 whether or not through clothing, the anus, buttocks, or any part of the genitals of another person,
7 or the breast of a female, and the actor's conduct is under circumstances the person knows or
8 should know will likely cause affront or alarm to the person touched.
9 [(4)] (b) Gross lewdness is a class A misdemeanor.
10 [(5) A] (4) Lewdness or gross lewdness does not include:
11 (a) a woman's breast feeding, including breast feeding in any location where the woman
12 otherwise may rightfully be[, does not under any circumstance constitute a lewd or grossly lewd
13 act, irrespective of whether or not the breast is covered during or incidental to feeding];
14 (b) legitimate theatrical and artistic performances or modeling which:
15 (i) may occur in a state of nudity;
16 (ii) are not merely a guise or pretense utilized to exploit the conduct of being nude for
17 profit or commercial gain; and
18 (iii) are protected by the First Amendment, Constitution of the United States, or similar
19 state protections; or
20 (c) activities that taken as a whole have serious literary, artistic, political, or scientific
21 value which:
22 (i) may occur in a state of nudity; and
23 (ii) are protected by the First Amendment, Constitution of the United States, or similar
24 state protections.


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Legislative Review Note
as of 2-26-97 11:35 AM

This bill raises the following constitutional or statutory concerns:


Language in this bill parallels the language in an Indiana statue that was upheld by the United
States Supreme Court in Barnes v. Glen Theatre, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d
504 (1991). According to the plurality opinion in Barnes, so long as the law is general in its
application, and the governmental interest is to promote societal order and morality, it will be
upheld. Three appeals from Indiana courts challenged the Indiana statute for overbreadth. The
summary dismissal of the appeals by the United States Supreme Court constituted a ruling that
the statute was not overbroad. Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir. 1986). In
another case, it was determined that the Indiana statute was not unconstitutional for vagueness
because the words "public place" had not been defined. State v. Baysinger, 272 Ind. 236, 397
N.E.2d 580 (1979), appeal dismissed, 446 U.S. 931, 100 S. Ct. 2146, 449 U.S. 806, 101 S. Ct.
52 (1980). Exclusions are included in the bill for legitimate expression or conduct protected by
the First Amendment of the United States Constitution or by similar state protections.
However, this free speech area is constantly being further defined, as evidenced by many
federal district court decisions distinguishable from the substance of this bill, and it is unclear
how the United States Supreme Court may rule in this area in the future.

Office of Legislative Research and General Counsel

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