CO- ACLU lobbying for changes in nudity laws

4-26-2009 Colorado:

Forum asks: Pranksters and protestors or criminals and sex offenders?

BOULDER, Colo. — A 69-year-old man is caught masturbating behind a Dumpster at the University of Colorado in 2006. He was ticketed for public indecency, a petty offense carrying a punishment slightly harsher than littering.

A 46-year-old man was found shirtless, drunk and urinating on the side of the road in east Boulder County the same year. He was ticketed for indecent exposure, a class 1 misdemeanor that carries mandatory registration as a sex offender if convicted.

Public nudity in Boulder isn't exactly uncommon: Last year, more than 60 cyclists biked bare to protest oil-burning cars; a CU student ran naked across campus while tripping on acid, and another, also tripping, jumped naked out of a car and rolled around in the street; a 55-year-old man took several nude jogs along Folsom Street; and a teenager streaked the Boulder-Fairview football game.

But how the nude offenders are ticketed by police -- if they are ticketed at all -- can vary widely, resulting in either a relatively minor offense or life-changing registration as a sex offender.

In the wake of last year's naked pumpkin run, when a dozen "Naked Pumpkin Runners" were ticketed for indecent exposure on Halloween, public frustration with Colorado's nudity laws came boiling up. Now, the American Civil Liberty's Union is lobbying for changes that would keep streakers off of sex-offender lists and protect nudity as a constitutionally sheltered freedom of expression.

"We are trying to make changes at the state level," said Judd Golden, who chairs the Boulder County chapter of the ACLU. "We are very concerned about the way in which the Colorado sex-offender registry is set up, resulting in sex-offender status for these kinds of activities."

The ACLU lobby, busy with a recent push to end Colorado's death penalty and facing a legislature buried in a laborious budget-balancing process, hasn't made much progress on the nudity front, Golden said. But they're not giving up.

The group is hosting a public forum Tuesday called "Naked in Boulder," which will discuss whether streakers, naked bike riders and the sort should be treated as "pranksters and protesters, or criminals and sex offenders."

Looking for a law that fits

Police officers faced with a naked Boulderite have few choices in terms of charges.

Indecent exposure applies to people who have bared their genitals in a way "likely" to upset someone, and public indecency applies to someone who had sex, masturbated or lewdly exposed their body in public. Of the two, indecent exposure may be the better fit for streakers, but carries the much harsher consequence of sex-offender registry.

Over the years, both charges have been given out for seemingly similar offenses. A 22-year-old CU student who, overcome by the joy of finishing finals, danced naked through the streets in downtown Boulder was ticketed for public indecency. When a 17-year-old Boulder High student streaked a school football game, he was charged with indecent exposure.

At the opposite end of the spectrum, a 38-year-old man who sent images of himself masturbating over the Internet to a teenage girl was charged with indecent exposure. A man seen with his pants and underwear pulled down and waving to children playing in the school yard at an elementary school was charged with public indecency.

"We're dealing with a square peg in a round hole," said Stan Garnett, who became Boulder County's district attorney shortly after the pumpkin running incident. "Most people would say people running down the mall with pumpkins on their heads may not be somebody who is at risk of becoming a sex offender in the future."

None of the pumpkin runners was actually found guilty of indecent exposure. Most pleaded guilty to disorderly conduct, a crime that doesn't mention nudity and carries a gentler punishment.

"Prosecutors end up charging people with offenses that don't really fit in order to avoid some of these absurd consequences," said Rep. Claire Levy, a Democrat representing Boulder in the Colorado general assembly. "Then there's an offense on the record that doesn't fit the crime and the public truly doesn't know what a criminal record means."

Levy said that while it makes sense for some people convicted of indecent exposure to be registered as sex offenders, allowing more judicial discretion could be a good thing. She said that legislators should examine how the entire registry is working, but said it's not a priority right now.

The legality of nude

While indecent exposure and public indecency are clearly different, both depend on the person being more than just naked. To fit the bill, someone else has to be offended.

"You need to have somebody that says they would have been alarmed or affronted," said Andy Schmidt, a lawyer of one of the pumpkin runners, speaking about indecent exposure. "In this situation, that was not going to happen."

Schmidt's client, Ty Tuff, was the only runner who didn't take a plea deal and eventually had all of his charges dropped. In Schmidt's opinion, his client couldn't have been found guilty because he didn't do anything wrong.

"The only law broken in the pumpkin run is that police detained people unlawfully," he said.

There is no law that prevents people from just being naked in Boulder when no one is offended.

On the evening of the pumpkin run, which was well publicized and scheduled late at night, the Pearl Street Mall was packed with a throng of spectators waiting to see the streakers, and Schmidt would argue, they were hardly offended.

If Boulder did have a law preventing general nudity, it would be constitutionally dubious, according to the ACLU, since stripping down can take the form of protected speech.

"Where is the line between those who are engaging in expressive speech and may do so under the First Amendment versus the criminal approach?" he said. "We are concerned about a chilling effect on otherwise protected speech."

Garnett, who will speak at the ACLU panel alongside Schmidt, doesn't agree.

"I have a little trouble with the argument that there's a constitutional right to run around naked," he said. "I don't have much difficulty, philosophically, with passing laws that require people to keep their clothes on." ..News Source.. by Laura Snider