State v. Nelson, 53789

• Decision Date: 23 June 1970
• Docket Number: No. 53789,53789
• Citation: 178 N.W.2d 434
• Parties: STATE of Iowa, Appellee, v. Fredericka NELSON et al., Appellants.
• Court: Iowa Supreme Court

Page 434

178 N.W.2d 434

STATE of Iowa, Appellee, v. Fredericka NELSON et al., Appellants.

No. 53789.

Supreme Court of Iowa.

June 23, 1970.

Jesse, Le Tourneau, & Johnston, Des Moines, for appellants.

Richard C. Turner, Atty. Gen., and William W. Garretson, Asst. Atty. Gen., and Michael Enich, County Atty., for appellee.

REES, Justice.

Eight defendant-appellants were charged by county attorney's information with the crime of indecent exposure in violation of section 725.1, Code, 1966. Their cases were consolidated for trial to a jury which resulted in verdicts of guilty as to each defendant, and each defendant was thereupon fined the maximum of $200. All defendants appeal. We affirm.

The defendants admittedly, at a public meeting in a lounge at one of the student residence halls of Grinnell College, and in the presence of a group of about 80 young men and women completely disrobed. The meeting was held in conjunction with or as a part of the college's program of sex education. At previous meetings presentations were made by a psychiatrist, a gynecologist and a clergyman. The meeting at which the incident occurred was at 8 P.M., February 5, 1969, and the featured speaker, Mr. Brice Draper, was present, representing Playboy Magazine. The magazine is a publication of wide, general circulation, and features short stories, articles, and 'some pretty high quality fiction stories and photographs of nude women'. In advance of the meeting a circular was distributed on the campus of the college characterizing Playboy Magazine as a 'money changer in the temple of the body'. A copy of the circular was introduced as an exhibit upon the trial of the case, and while one of the State's witnesses testified, according to the record before us, that the 'paper handed out to people before the meeting began stating the disrobing was going to occur' we find no reference in the exhibit of any advance notice that any of the persons attending the meeting planned in advance to disrobe. The eight defendants and two others who were not prosecuted disrobed completely, and remained unclothed as a part of the audience for about ten minutes and then put their clothing back on. During all of the time the defendants remained unclothed the discussion continued and there does not seem to be any indication in the record that the meeting was disrupted by the disrobing. During the disrobing, and while the defendants remained unclothed, they sang a song, 'You Have Got to Walk That Lonesome Road', and it does not appear in the record that any of the defendants made any obscene gestures or engaged in any conduct that related to sexuality. Other than the act of disrobing there was no conduct which could have been interpreted as being obscene or lewd. No complaint was made to the civil authorities. The administration of the college was investigating the matter when an independent investigation was begun by the office of the Attorney General of Iowa, whereupon the college authorities terminated their efforts to investigate the incident.

There seems to be no substantial factual conflict in the record. All of the defendants testified that they were acting in protest against Playboy Magazine's use of pictures of nude females for commercial purposes, and deny they did anything by way of speech of gesture which might be considered obscene or indecent. They also testified they did not consider the mere act of disrobing indecent. All of the witnesses who testified stated there was no disruption of the meeting, and no act or speech other than the act of disrobing connoted anything indecent or obscene.

After the State had rested its case in chief, the defendants moved for a directed verdict of acquittal on the grounds (1) that there was insufficient evidence to show that each defendant exposed himself or any private part of his body in violation of the statute with which he or she was charged, and (2) there was a total absence of any evidence to show that the conduct complained of was open and gross lewdness and a designedly open and indecent or obscene exposure of the person of any of the defendants such being a material element on a prima facie case of violation of section 725.1, Code, 1966. Said motion having been overruled by the court, the same was renewed at the close of all the evidence and on the further ground that the defendants were engaged in the exercise of conduct privileged by the First Amendment to the United States Constitution made applicable to the prosecution of the cause by the Fourteenth Amendment to the United States Constitution, and that there was no showing in the record of a clear and present or material and substantial danger or threat to any substantial and compelling interest of the State. The renewed motion with the additional grounds incorporated in it was likewise overruled.

The defendants assign and rely upon for reversal two claimed errors. (1) The district court erred in holding that public nudity alone constitutes the crime of indecent exposure, and (2) the district court erred in not recognizing that defendants' conduct was privileged as an exercise of free speech, and could be punished only upon a showing by the State that the conduct created a clear and present danger to a substantial evil the State may prevent.

I. The statute under which the defendants were charged, section 725.1, Code, 1966, provides, 'Lewdness--indecent exposure. If any man and woman not being married to each other, lewdly and viciously associate and cohabit together, or if any man or woman, married or unmarried, is guilty of open and gross lewdness, and designedly makes an open And indecent Or obscene exposure of his or her person, or of the person of another, every such person shall be imprisoned in the county jail not exceeding six months, or be fined not exceeding two hundred dollars.' (emphasis supplied).

We note particularly the employment of the conjunctive And and the disjunctive Or in the phrase 'and designedly makes an open And indecent Or obscene exposure of his or her person, * * *'. This would indicate to us that the open exposure of a person is indecent per se but not necessarily obscene; such it appears to us is the obvious intent of the statute. While it is true that the two words 'indecent' and 'obscene' have been used as synonyms for each other, we find that eminent linguistic scholars and semanticists do not agree they are so interchangeable. In the Modern Guide to Synonyms, published as 'Use the Right Word' (Funk and Wagnalls, 1968), edited by S. I. Hayakawa, an internationally recognized authority on semantics and the author of the widely acclaimed book, 'Language in Action', we find Professor Hayakawa concludes that the words 'immodest, improper, indecorous, indelicate and unseemly' are synonyms for 'indecent'. Modern Guide to Synonyms, p. 302. In all fairness, however, we must observe that the words 'indecency' and 'obscenity' or 'indecent' and 'obscene' have been used as synonyms for each other in a multitude of cases too numerous to cite here.

We do not, however, intend to engage in rhetorical hairsplitting as we perceive the question before us which is presented by defendants' first assignment of error is basically one of statutory constuction. We recognize that penal statutes are inelastic and cannot by construction be made to embrace cases plainly without the letter, though within the reason and policy of the law. Statutes defining crimes are to be strictly construed and not to be held to include charges plainly without the fair scope and intendment of the language of the statute, though within its reason and policy, and in the event of doubts they are to be resolved in favor of the accused. State v. Lovell, 23 Iowa 304, 305; State v. Hill, 244 Iowa 405, 407, 57 N.W.2d 58, 59, and cases therein cited. Kuhn v. Kuhn, 125 Iowa 449, 451--452, 101 N.W. 151, 152.

In United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37, Chief Justice Marshall, speaking for the court with respect to this rule of construction, said, 'The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, not in the judicial department. It is the Legislature, not the court, which is to define crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmakers must govern in the construction of penal as well as other statutes. This is true. But this is not a new, independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: that, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no reason for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of the words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of equal atrocity or of kindred character with those which are enumerated.'

The thrust of the arguments advanced in support of defendants' first assignment of error is that...