State v. House

• Decision Date: 08 February 1984
• Citation: 676 P.2d 892,66 Or.App. 953
• Parties: STATE of Oregon, Respondent, v. Scott Wayne HOUSE, Appellant. 82-0265; CA A25766. . *
• Court: Oregon Court of Appeals

Page 892

676 P.2d 892

66 Or.App. 953

STATE of Oregon, Respondent, v. Scott Wayne HOUSE, Appellant.

82-0265; CA A25766.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted April 27, 1983.

Resubmitted In Banc Dec. 1, 1983.

Decided Feb. 8, 1984.

Rex Armstrong, Portland, argued the cause for appellant. On the brief were Stuart J. Cutler, Chief Public Defender, and Jaurene R. Judy, Deputy Public Defender, Metropolitan Public Defender, Portland.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Rex Armstrong, Portland, filed a brief amicus curiae for American Civ. Liberties Union Foundation of Oregon, Inc.

NEWMAN, Judge.

Defendant was convicted, after a jury trial, of engaging in sexual conduct in a live public show and sentenced to pay a fine. The indictment charged that defendant

" * * * on or about the 7th day of January, 1982, in Washington County, Oregon did unlawfully and knowingly engage in sexual conduct, to wit: by touching his genitals, pubic area and buttocks against female spectators and customers, whose names are unknown and by allowing the above-said female spectators and customers, whose names are unknown, to touch the said defendant dancer's genitals, pubic area and buttocks, in an act of apparent sexual stimulation or gratification, in a live public show at the Chase Restaurant and Lounge located at 9242 SW Beaverton-Hillsdale Highway, Beaverton."

Defendant assigns as error that the trial court overruled his demurrer to the indictment. He argues that the statute upon which the indictment is based is void for vagueness under Article I, section 21, of the Oregon Constitution, is overbroad under Article I, section 8 of the Oregon Constitution, and violates the First and Fourteenth Amendments to the United States Constitution. Because we hold that ORS 167.062 is overbroad, violates Article I, section 8, and reverse, we do not reach the federal constitutional questions. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). ¹

Defendant was a male dancer at the Chase Lounge. He removed his cowboy outfit and danced in front of an all-female audience wearing only a "male G-string," which a witness described:

" * * * It is a nylon, small, less-than-bikini underwear. I mean, there is hardly anything there. It was very thin material. It was narrow-banded on the hips, very thin band down between the buttocks area. The front was--Well, the genitals were covered but barely. It was kind of stretchy material, so, uh, all the shapes visible. It was just the minimum amount you could use to cover your genital area."

As part of his dance, defendant left the stage and danced among the tables in the audience. Members of the audience touched defendant's buttocks or genitals while placing money in the front, back and side of his G-string. Members of the audience also reached out and touched defendant's buttocks and genitals as he passed down the aisle.

ORS 167.062, on which the indictment was based, provides:

"(a) It is unlawful for any person to knowingly engage in * * * sexual conduct in a live public show.

" * * *

"(5) As used in ORS 167.000, 167.007, 167.087 and this section unless the context requires otherwise.

"(a) 'Live public show' means a public show in which human being, animals, or both appear bodily before spectators or customers.

"(b) 'Public show' means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded."

Sexual conduct is defined in ORS 167.060(10) as

" * * * human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification." ²

Accordingly, ORS 167.062 prohibits (1) human masturbation, sexual intercourse, or any touching in a live public show of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, (2) whether alone or between members of the same or opposite sex or between humans and animals (3) in an act of apparent sexual stimulation or gratification.

The words "human masturbation" and "sexual intercourse" are explicit. Similarly, the words "any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals" are clear. If vagueness exists in the statute, it is in the words "in an act of apparent sexual stimulation or gratification." ³ We give to those words, however, a meaning that is definite and avoids vagueness "with reasonable fidelity to the legislature's words and apparent intent." See State v. Robertson, 293 Or. 402, 411, 649 P.2d 569 (1982). Any touching of the described areas that is "in an act of apparent sexual stimulation or gratification" means any touching of the described areas that a reasonable person would perceive as sexually stimulating or gratifying.

So interpreted, however, the statute is overbroad. ⁴ It prohibits expression that is protected by Article I, section 8, which prohibits passage of any law "restraining the free expression of opinion, or restricting the right to speak, write or print freely on any subject whatever; * * * " When a law is challenged on its face as unconstitutionally overbroad under Article I, section 8, we do not consider whether the conduct of the person challenging the enactment is constitutionally protected. State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569; Marks v. City of Roseburg, 65 Or.App. 102, 670 P.2d 201 (1983). If the terms of the statute prohibit or restrain expression that comes within the protection of Article I, section 8, it is unconstitutional.

In ballets, operas, musicals and dramas, whether tragic, comic or satirical, one performer, either in human or animal costume, may touch the buttocks, breasts or genitals of another performer. The other person touched may, as part of the performance, respond so that a reasonable person in the audience will perceive that the performer touched is sexually stimulated or gratified. To a reasonable person, the touching is "in an act of apparent sexual stimulation or gratification." That is the message that the performers seek to convey. It is touching that the statute makes criminal. It is also expression that is protected by Article I, section 8. Live public shows that would fall under the sweep of the statute include Shakespeare's "Romeo and Juliet," the musicals "South Pacific," "Hair," and "Oh! Calcutta," the ballets "Swan Lake," and "Leda and the Swan," and Tennessee Williams' dramas "Sweet Bird of Youth" and "Cat on a Hot Tin Roof."

Because the statute is overbroad and prohibits expression protected by Article I, section 8, we may not construe the statute to narrow its scope. See State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569; see also Marks v. City of Roseburg, supra, 65 Or.App. at 109, 670 P.2d 201; State v. Frink, supra. ⁵ ORS 167.062, therefore, violates Article I, section 8, of the Oregon Constitution. ⁶ The court erred in not sustaining the demurrer to the indictment.

Reversed.

ROSSMAN, Judge, dissenting.

The majority has concluded that ORS 167.062 is overbroad because it "prohibits expression that is protected by Article I, section 8." Thus, once again, this court has wielded its mighty axe, and struck down another legislative act as unconstitutional. Because I think that the majority may have misconstrued its role in cases of this type, and because I believe that it has overlooked a reasonable interpretation of ORS 167.062 which avoids overbreadth, I must dissent.

I begin by noting that our mission in a case like this one is not to pass judgment on the wisdom of the legislature's attempt to regulate morality. Approval or disapproval of the legislature's motive is irrelevant. Rather, we are to concern ourselves solely with whether the challenged statute is constitutional and we are obligated to uphold its validity if at all possible. See City of Portland v. Derrington, 253 Or. 289, 292, 451 P.2d 111, cert. den. 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969); City of Portland v. White, 9 Or.App. 239, 495 P.2d 778, rev. den. (1972). This obligation to uphold legislative acts requires this court to literally rescue a statute from unconstitutionality by adopting a narrowing construction if it can be done "without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader." State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982).

"A narrowing construction similarly may save a statute attacked as 'overbroad,' unless the constitutional guarantee invoked against the statute forbade its very enactment as drafted. * * * "

The initial question therefore is whether ORS 167.062 is facially unconstitutional, i.e., is the conduct which the statute proscribes a form of expression protected by Article I, section 8. After examining the statute head-on, I am convinced that there is no problem with its facial validity. It concerns a form of conduct to which constitutional protections have not been extended. See generally, City of Portland v. Derrington, supra (where the Supreme Court held that the elements of communication which are incidental to appearing topless in a bar or restaurant lack enough significance to warrant First Amendment protection for that form of conduct); see also State v. Tidyman, 54 Or.App. 640, 635 P.2d 1355 (1981), rev. den. 292 Or. 722, 644 P.2d 1131 (1982) (where we relied on the Derrington rationale to sustain the denial of a motion to...