SD- Indecent exposure law could be tightened

12-29-2008 South Dakota:

South Dakota laws defining the crime of indecent exposure will get another look this legislative session.

As written, indecent exposure cannot be prosecuted if it happens in someone's home or if the victim is too young or mentally incapable of taking offense.

State Sen. Sandy Jerstad, D-Sioux Falls, said a constituent complained that a plumber exposed himself while working at her home, but the man could not be charged because it didn't take place in public. Jerstad is looking into rewriting the law to make such a scenario a crime.

The lawmaker said she herself has been a victim of indecent exposure.

"It's a frightening and violating kind of experience," she said. "And the horror of it happening in your own home."

If it closes those loopholes, other Legislators said they're all for the proposed bill.

"Having not seen the bill, at first hearing of it, I'd be in favor of it," said state Sen. Gene Abdallah, R-Sioux Falls, a former head of South Dakota's Highway Patrol. "And I'd like to see the bill. But if it closes some loopholes in the wording, so be it. I know Senator Jerstad is very involved and very serious about these things. I support her and I'd probably be in favor of the bill, too."

Separately, deputy Minnehaha County state's attorney Hope Matchan wants to revise the crime of indecent exposure involving a child as it pertains to the victim.

In a case Matchan prosecuted, jurors in June acquitted 55-year-old registered sex offender John David Hatch, who was accused of exposing himself to a 29-month-old girl.

In a two-part defense, Hatch said the girl's grandfather misinterpreted what he saw and that the girl was too young to be a victim of indecent exposure. Exposing genitals to a child is a crime only if the accused does so with intent to sexually arouse or gratify someone and knows his conduct is "likely to annoy, offend or alarm some child."

In the case of the 2-year-old girl, Hatch's lawyer argued she was too young to be annoyed, offended or alarmed.

"Situations come up and that's how we learn," Matchan said. "We get cases and we say, 'That's wrong; that should be a crime.' "

Both Matchan and Jerstad acknowledged it will be tricky to rewrite the law in a way that will not criminalize innocuous interaction among family members, such as a father teaching his child how to shower or a mother who walks naked down a hallway while getting dressed. ..News Source.. by Josh Verges