Iowa Supreme Court: Sexting isn't indecent exposure. It's something else.
February 2, 2018, the Iowa Supreme Court reversed and remanded for dismissal a jury verdict of guilty on an indecent exposure count in a case that also involved stalking. The Court left the stalking count undisturbed. In State v. Lopez, Justice Hecht writing for the Court found counsel was ineffective as a matter of law for failing to challenge the sufficiency of the evidence because the word “exposes” in the statute was vague and the Defendant had merely sent to the victim a still digital photograph, purportedly of his own genitals.
The Court examined Iowa Code § 709.9 which reads:
A person who exposes the person’s genitals or pubes to another not the person’s spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if: 1. The person does so to arouse or satisfy the sexual desires of either party; and 2. The person knows or reasonably should know that the act is offensive to the viewer.
Lopez at p. 6 citing (Iowa Code § 709.9 (2015) (emphasis added)).
Justice Hecht wrote:
“Under the interpretation advanced by the State, one exposes one’s genitals by transmitting an image of them via text message because the image is made visible for a recipient. Under Lopez’s preferred interpretation, one does not expose one’s genitals merely by transmitting an image of them to another person. Because we find both interpretations of the word exposes to be plausible, we conclude the statute is ambiguous. Therefore, we resort to our tools of statutory interpretation.” Lopez at 8.
First, the Court examined the level of offensiveness as between in-person physical exposure and the unsolicited receipt of an unwanted digital image. It referenced a Uniform Court of Military Justice decision which held that in-person exposure is more offensive.
Second, Justice Hecht also noted that Iowa Code Chapter 709 contained only four crimes that can be committed outside the physical presence of the victim and that only one of those crimes can be committed against an adult—invasion of privacy added to the Code in 2004. Lopez at 14.
Third, the Opinion noted that the Legislature addressed the transmission of offensive digital images in another section of the Code.
Therefore, the Iowa Supreme Court held that the transmission of a still image cannot violate Iowa Code § 709.9, indecent exposure. In a footnote, however, Justice Hecht noted that this did not prohibit the prosecution of indecent exposure through real time transmission such as Facebook or Skype.
The Court also examined whether a 2015 law change requiring the sentencing court to impose a $100 stalking surcharge pursuant to Iowa Code § 911.2B was ex post facto, or, enacted after the Defendant began his criminal conduct. The Court found that the jury verdict was unclear and therefore presumed the law change did not occur until after the criminal conduct had began. Relying on its previous decisions that a surcharge is part of the penalty, it stripped the 911.2B surcharge out of the Defendant’s sentence for stalking.
The Court, however, allowed the five-year prison sentence for stalking to stand. The Defendant thus saved one year of incarceration because he had been given a five year prison sentence on the Class D stalking and he had been given an additional one year consecutive on the indecent exposure. He won’t serve the additional year.
Justice Mansfield concurred specially. Justice Mansfield’s concurrence, which Chief Justice Cady joined, would go further, to “adopt a standard to govern future cases.” Lopez, Mansfield concurring, at 21. Referencing federal statute 17 U.S.C. § 102(a)(a), Justice Mansfield distinguished a “previously recorded image” from its subject:
“When a person transmits video or photos that have previously been “fixed in any tangible medium of expression,” see 17 U.S.C. § 102(a) (2012), that person is exposing an image rather than exposing himself or herself.”
NOTE: David A. Cmelik Law PLC has no affiliation to the Lopez case.
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