Minnesota high court asked if showing breasts, elbows can be indecent exposure

ST. PAUL (CN) — A person could be convicted of indecent exposure by showing off their elbow, an attorney arguing for the state of Minnesota told the Minnesota Supreme Court Tuesday.

The concession by the state that elbows could be lewd came as the court heard oral arguments in a case involving Eloisa Rubi Plancarte’s conviction for indecent exposure at a Rochester, Minnesota, gas station.

Police responded after someone notified them that Plancarte’s breasts were exposed as she walked by.

Assistant Olmsted County Attorney Jim Haase, who spoke for the state Tuesday, told the court that the intent and other circumstances surrounding an event determine whether it amounts to indecent exposure — event for body parts not typically associated with sexuality.

“Is it the state’s position that this statute could be violated by exposing any body part?” Associate Justice Karl Procaccini asked.

“I would say it’s conceivable,” Haase replied. “I don’t know that it’s determinative of this case.”

Plancarte was convicted under the first paragraph of Minnesota’s indecent exposure law, which makes it a misdemeanor to willfully and lewdly expose one’s body or private parts.

However, “private parts” refers to genitals — and breasts are not genitals, her lawyer Adam Lozeau told the court Tuesday.

The fact that several states, like Hawaii and Ohio, don’t define breasts as genitals — and that the Minnesota Legislature defines specific body parts that are not genitals in its sexual conduct laws — shows that the intent was not to convict women, or anyone else, from having their breasts exposed, he argued.

He characterized Plancarte’s actions as simply walking across a gas station parking lot with part of her breasts uncovered and said it was not at all unusual in parking lots in Minnesota.

“What kind of gas stations are you going to?” Chief Justice Natalie Hudson asked.

“It’s not especially typical for a woman to do it, but it’s very common for men to do,” Lozeau replied.

This distinction is likely the biggest issue the court will face in its decision: whether the law is applied equally and if it violates the Minnesota and U.S. Constitutions.

“The majority of courts in this country that have looked at this have said that a man is not similarly situated to a woman based on the physical differences. So how do you overcome that?” Procaccini asked Lozeau.

“‘Similarly situated’ depends on what they did,” Lozeau replied. “It doesn’t depend on whether there is some other difference that can later justify the differential treatment.”

Lozeau argued that some other act would need to take place for it to be indecent exposure.

Haase countered that a man could be convicted of the same thing Plancarte was, arguing context was key. A lower court determined Plancarte was an exhibitionist and derived sexual gratification from showing her breasts in public.

The state attorney also pointed out that a woman changing in her car or after a marathon wouldn’t be considered indecent exposure because the intent was not to be lewd or lustful and community morals would not be against it.

He found an example in an annual naked bike ride in Madison, Wisconsin. “It’s everything it purports to be, and I guess that community accepts that event — and as I understand it, nobody was arrested,” Haase said.

To add to his intent argument, Haase repeatedly cited that Plancarte lifted up her shirt to expose her breasts.

However, Lozaeu disputed that interpretation of the event. “There is no evidence in the record that Mrs. Plancarte lifted up her shirt,” he said. “That is simply not in the record. There is no evidence of that. There is no finding on that point.”

Minnesota’s Supreme Court granted review of the case for the following issues: whether “female breasts” are “private parts” for purposes of the indecent-exposure statute; whether the evidence presented at trial was sufficient to prove that Plancarte “lewdly” exposed her breasts in violation of the indecent-exposure statute; and whether the prosecution, conviction and incarceration of Plancarte for an act which men are permitted to do violates the state and federal constitutional guarantees of equal protection of the law.