Duvallon v. District of Columbia

• Citation: 515 A.2d 724
• Decision Date: 03 October 1986
• Docket Number: No. 83-1468.,83-1468.
• Parties: Mercedes DUVALLON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

515 A.2d 724

Mercedes DUVALLON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 83-1468.

District of Columbia Court of Appeals.

Submitted February 22, 1985.

Decided October 3, 1986.

Mercedes Duvallon, pro se.

Inez Smith Reid, Corp. Counsel at the time brief was filed, John H. Suda, Principal Deputy Corp. Counsel at the time brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Michele Giuliani, Asst. Corp. Counsel, Washington, D.C. were on brief, for appellee.

Before PRYOR, Chief Judge, and NEW-MAN and FERREN, Associate Judges.

NEWMAN, Associate Judge:

When she was arrested and charged with indecent exposure in violation of D.C. Code § 22-1112(a) (1981), Ms. Duvallon was engaged in a protest directed to the Supreme Court of the United States because of what she deemed to be the denial of her federal constitutional rights, both by the courts of the United States and the courts of Florida. At trial, the government proved that Duvallon intentionally exposed her bare buttocks to public view. She was convicted as charged. She contends the statute, as written, does not interdict the public exposure of the bare buttocks. We agree and reverse.¹

The facts in the case are undisputed. On October 14, 1983, at approximately 10:45 a.m., Duvallon approached the plaza at the Supreme Court of the United States. She wore a cardboard sign around her neck which covered the front of her body from the neck to below the knees. Duvallon removed her clothing and began walking back and forth on the plaza with her cardboard sign held in front of her body. The sign contained the following message:

Petition for Rehearing to the Supreme Court of the United States:

This is the alleged "crime" for which I am facing an illegal incarceration of sixty (60) days in case no. 82-6534 after denial of certiorari. The opinion of the Florida First District Court of Appeal has firmly established my innocence. Contrary to the opinion of the Eleventh Circuit Court of Appeals there is no conflict to be resolved by the Florida Supreme Court.

Wherefore, in the name of Jehovah, God of Truth and Justice, I move the court to perform its function and grant my petition.

Respectfully submitted, Mercedes Duvallon²

Duvallon was arrested and charged with indecent exposure. Her case was heard by Commissioner Treanor in accordance with D.C.Code § 11-1732(c) (Supp.1986).³ At trial the arresting officers testified that all they could see was a view of the back (including the buttocks) and sides of the body (including the sides of the breasts); they could not see genitalia or the front of the breasts. The officers also testified that at no time did Duvallon make any lewd or obscene gestures. The government called no other witnesses. She was convicted as charged.

Ms. Duvallon's actions offend individual senses of propriety, modesty and self-respect. But this court is not asked to decide whether or not Ms. Duvallon violated notions of personal modesty or propriety. Instead we are simply called upon to apply the rule of law and decide whether she broke the law. To answer this question, we search neither our own standards of morality nor standards of dress but rather the rule of law. An examination of decisional law, treatises, and basic principles of statutory construction leads inexorably to the conclusion that public exposure of the bare buttocks is not a violation of D.C.Code § 22-1112(a).

I

Insofar as is relevant to this appeal, D.C. Code § 22-1112(a) (1981) forbids anyone ". . . [from making] . . . any . . . indecent exposure of his or her person. . . ." To resolve this appeal, we must determine the meaning of the term "person", the exposure of which is prohibited.

In District of Columbia v. Garcia, 335 A.2d 217 (D.C.1975), we held that the indecent exposure clause of § 22-1112(a) was a codification of the common law crime of indecent exposure and cited to 50 Am. Jur.2d Lewdness, Indecency and Obscenity §§ 17-18 (1970), and 67 C.J.S. Obscenity § 5 (1950). Garcia, supra, 335 A.2d at 222 n. 16. This construction is in accordance with principles long established by this court that "[i]n the absence of a statutory definition of the elements of a crime, the common law definition is controlling." Perkins v. United States, 446 A.2d 19, 23 (D.C.1982); Clark v. United States, 418 A.2d 1059, 1061 (D.C.1980); United States v. Bradford, 344 A.2d 208, 213 (D.C.1975); see also Saunders v. First National Realty Corporation, 245 A.2d 836, 838 (D.C. 1968), rev'd on other grounds, 138 U.S. App.D.C. 369, 428 F.2d 1071 (1970) ("No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.") (citations omitted).

In American Jurisprudence, which Garcia cites, the common law crime of indecent exposure is defined as "the wilful and intentional exposure of the private parts of one's body in a public place in the presence of an assembly. . . ." 50 AM.JUR.2d, supra, at § 17. Corpus Juris Secundum, which Garcia also cites, defines the offense as "the exhibition of those private parts of the person. . . . The purpose of such laws is to protect the public from shocking and embarrassing displays of sexual activity. . . ." 67 C.J.S. Obscenity § 10 at 49-50 (1978). Further, "[c]onviction of the offense requires proof [that one] . . . intended by his conduct to direct public attention to his genitals. . . ." Id. § 10 at 50 (emphasis added).

The common law of the District of Columbia consists of the common law of Maryland and the British statutes in force in Maryland in 1801, unless inconsistent with provisions of our codes. Perkins, supra, 446 A.2d at 23; see also D.C.Code § 49-301 (1981). The Maryland courts have held that "[t]he authorities . . . cited are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one's body in a public place in the presence of an assembly."⁴ Dill v. State, 24 Md.App. 695, 697, 332 A.2d 690, 693 (1975).⁵

Neither Dill nor other Maryland decisions define "private parts" within the meaning of the common law offense of indecent exposure. Thus, we must examine other common law authorities to define this term.⁶

II

English common law cases compel the conclusion that indecent exposure was limited to the exposure of genitals. These cases repeatedly state that the defendant exposed her or his "private parts" or "person." See, e.g., Reg. v. Webb, 3 Cox C.C. 183 (1848) (indictment states that Webb did "indecently and wilfully expose and exhibit his private parts, naked and uncovered, in the presence of Mary Ann . . ."); Reg. v. Thallman, 9 Cox C.C. 388 (1863) (indictment charges that Thallman did "indecently expose his person and private parts naked"); see also 4 W. BLACKSTONE, COMMENTARIES ^*169 ("persons wilfully, openly, lewdly, and obscenely exposing their persons in any street or public highway, or in the view thereof, or in any place of public resort with intent to insult any female" were rogues and vagabonds) (quoted in Dill v. State, supra, 24 Md.App. at 698, 332 A.2d 690, 693 n. 2).

Significantly, the word "person" has been held to be a euphemism for the penis. See Evans v. Ewels, [1954] 2 All E.R. 22.⁷ In Evans, the Queens Bench division was faced with the question of whether or not Evans' exposure of his lower abdomen near his genitals constituted indecent exposure under section four of the Vagrancy Act of 1824. The Vagrancy Act prohibits a man from "wilfully, openly, lewdly and obscenely exposing his person . . . with intent to insult any female." Any man guilty of this crime "shall be deemed a rogue and a vagabond." The court found that the exhibition of the lower abdomen was not indecent exposure.

It seems to me that at any rate today, and indeed by 1824, the word "person" in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for penis.

Evans v. Ewells, supra, 2 All E.R. at 24.⁸ The Evans holding has considerable support in English caselaw.⁹ In Reg. v. Wood, 14 Cox C.C. 46 (1877), Wood was convicted of raping Emelia Wild. Wild testified "how Wood had come into the house, had committed this assault upon her by insertion of his person. . . ." (Emphasis added). In Reg. v. Orchard and Thurtle, 3 Cox C.C. 248, 251 (1853), the court held that in a public urinal, "[e]very man must expose his person who goes there for a proper purpose." (Emphasis added). In Reg. v. Wellard, 15 Cox C.C. 559 (1884), Wellard took seven or eight girls down to a marsh and "exposed his person. . . ." (Emphasis added). When some local boys came upon this scene, "[the] boys saw nothing improper, as the prisoner had turned round on their approach, and was lying on his stomach." Id. at 560. It can easily be inferred from this factual statement that Wellard exposed his penis to the young girls. See also Reg. v. Thallman, supra, 9 Cox C.C. at 389 ("He was almost entirely naked, and exposed his person.") (emphasis added); Reg. v. Eliot, 169 Eng.Rep. 1322 (1861) (defendants fornicated in public and "unlawfully, wickedly and scandalously did expose . . . the bodies and persons of them") (emphasis added); Reg. v. Reed, 12 Cox C.C. 1, 2 (1871) (defendants unlawfully and indecently exposed "their bodies and persons naked and uncovered" in front of ladies) (emphasis added).

American common law cases are in accord with those of England. In State v. Moore, 194 Or. 232, 238, 241 P.2d 455, 459 (1952), in discussing the term "private parts" as applied to a female, the court said: "It is hornbook law that whenever the term `privates or private parts' are used as descriptive of a part of the human body, they refer to the genital organs." In Jones v. State, 7 N.C.App. 166, 171 S.E.2d 468 (1970), the court held that private parts means genitals, those portions of the human anatomy used in the reproductory process. Accord State v....