(CN) – A man who dropped his pants in front of two young girls, exposing an Elmo diaper he wore, is not guilty of lewdness or sexual exploitation, the Utah Supreme Court ruled.
“Some forms of antisocial behavior are simply beyond the reach of the criminal law,” the 15-page opinion states.
Barton Bagnes was walking around a neighborhood sucking on a candy pacifier in 2009 when two 9-year-old girls riding their bikes noticed he was wearing a diaper under his sagging shorts
When the girls asked him about his diaper, Bagnes told them he wore the diaper because his “parents never potty trained him” and he would “pee his pants” without it.
He then dropped his pants to his knees to show the girls the entire diaper, meant for a 40-lb. toddler, which featured the Sesame Street character Elmo on the front.
Although the diaper did not fit Bagnes, an adult man, all the way around, it covered his pubic area, and he did not turn around, so the girls never saw his exposed butt.
The girls asked him for one of his flyers that pictured children and adolescents wearing diapers. The back of the flyer listed two websites that led to portals to pornographic websites, but the girls never visited the URLs, according to the ruling. After one of the girls’ mothers found the flyer, Bagnes was arrested and convicted of lewdness involving a child, and sexual exploitation of a minor.
He was sentenced to one to 15 years for sexual exploitation and two terms of zero to five years for lewdness.
But the Utah Supreme Court reversed the convictions last week.
“Our Victorian past is well behind us. We no longer live in a society where our style conventions and social mores clamor for head-to-toe cover-up. The opposite is closer to the truth. Right or wrong, our society roundly tolerates – and often encourages – ever-less sartorial coverage of the human body,” Justice Thomas Lee wrote for the five-judge panel. “Whether at the gym, the pool, the beach, or even the public square, we routinely encounter those who would flaunt or manifest their (heretofore) private parts, including their pubic regions. And depictions of these sorts of exhibitions are peppered across the pages of our mainstream magazines, catalogs, newspapers, etc. (in print and online).” (Parentheses in original.)
Since this content is protected by the First Amendment and would not bring criminal charges, the law must be read not to criminalize a mere “exhibition” but a “lascivious exhibition,” the court ruled.
Under this standard, wearing a diaper is less of an exhibition than many swimsuits or gym clothes.
“A diaper is one of the most opaque, bulky articles of clothing one could imagine wearing as an undergarment. If virtual exposure is the question, we cannot deem the public display of a diaper to qualify unless we are prepared to also criminalize a range of other clothing that is much less opaque and far less obscuring (such as certain swimwear, or even athletic or workout attire). The difference between the former and the latter is social acceptability – not lasciviousness in the form of virtual exposure,” Lee wrote. (Parentheses in original.)
Without any physical exposure, a “private realization of a fetishized sexual fantasy” – if that’s what it was – does not criminalize Bagnes’s actions.
In addition, “Bagnes’s flyers in no way depicted any exhibition of the pubic region. The children and adolescents depicted in the flyers were wearing diapers, and the diapers did not make their pubic regions visible in any way. It completely obscured them,” Lee said. (Italics in original.)
The justice concluded: “Barton Bagnes undoubtedly startled the young girls he encountered in their neighborhood. And his conduct was certainly deplorable. But the evidence did not sustain the charges against him.”
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