[RonTheLogician]

Hi Dani,

I only now examined the 2013 Phoenix Fox TV article you cited on "public porn" and it got me thinking. I thought it interesting that the authorities (and maybe even at least one of the reporters) found it unfortunate that NO ONE had ever lodged a complaint about anything you or the others working ever did in public! Am I the only one who thinks they were egging on people to complain - which, of course, implies they would get additional BUSINESS, supporting their employment levels and compensation rates.

To start, I think its useful to see what Arizona law says. I warn readers that I am not a lawyer, but like everyone else, I have to understand the law well enough to obey it!

13-1402. Indecent exposure; exception; classification states:

A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act.

B. Indecent exposure does not include an act of breast-feeding by a mother.

C. Indecent exposure to a person who is fifteen or more years of age is a class 1 misdemeanor, except that it is a class 6 felony if the defendant has two or more prior convictions for a violation of this section or has one or more prior convictions for a violation of section 13-1406. Indecent exposure to a person who is under fifteen years of age is a class 6 felony.

D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13-1403 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age is guilty of a class 3 felony and shall be sentenced to a term of imprisonment as follows:

Mitigated Minimum Presumptive Maximum Aggravated
6 years 8 years 10 years 12 years 15 years

E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.

41-1443. Breast-feeding; public place; public accommodation adds:

A mother is entitled to breast-feed in any area of a public place or a place of public accommodation where the mother is otherwise lawfully present.

13-2904. Disorderly conduct; classification explains:

A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

1. Engages in fighting, violent or seriously disruptive behavior; or

2. Makes unreasonable noise; or

3. Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person; or

4. Makes any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession; or

5. Refuses to obey a lawful order to disperse issued to maintain public safety in dangerous proximity to a fire, a hazard or any other emergency; or

6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.

B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 is a class 1 misdemeanor.

The law turns on subtleties, which courts and their officers are obliged to address and even exploit to advantage.

I'd start by asking what "exposes" and "present" means in 13-1402. Since people rarely wear garments like wet suits, their nipples, areaolae and anus are almost always exposed to the air (or water/milk/whatever, if immersed). If we then stipulate that "exposes" means "visually exposes," we are still left with many questions. If I stand between my spouse and a stranger, turn to my spouse (or photographer), and visually expose the prohibited areas to that person, can the stranger "reasonably" object with the force of law? If so, is there a threshold distance or threshold barrier between me and the stranger, i.e. what does "present" mean?

Now, clothing is not totally opaque. If one of my prohibited areas faces a stranger, closer than some "reasonable" threshold distance, how transparent may my clothing be before that person can object with the force of law? Starting circa 1970, and continuing for at least a decade thereafter, it was common (if not ubiquitous) in cities throughout the United States for a non-trivial fraction of pretty young women to appear in public places wearing top covers so shear that every detail of their breasts could be as well described to a hypothetical police sketch artist as if they had been top-free. I don't recall ANY reports of police action against this, although it sometimes led to insulting remarks from members of the public who viewed such sights. The statute is mute on this point; what case law (if any) in Arizona exists to address this?

Then, let us assume clothing is so opaque that according to some "reasonable" threshold the coloring of the person's prohibited body areas is not visible. Is it still "exposure" if the clothing (or opaque paint!) is so shear that the SHAPE of said areas is as visible as if it was uncovered? And if not, what if the covering (e.g. paint) exactly replicated the coloring of the underlying body areas, making it appear these areas were totally unclad? Does that constitute illicit exposure? If not, how does the state prove a party charged under the law was not so attired, unless detained (rather than cited) and examined?

And if it constitutes indecent exposure, what if a woman made her areola appear larger by ringing it with body paint which exactly shared its color? Would exposing that ring be illegal? Presumably not, which provides a potential defense against an exposure charge if someone complains that another party exposed PART of her areola. Her areola varies in size and color depending on ambient temperature, emotional state and so on; could a cellphone snapshot by the complaining party be necessary and prove sufficient to overturn the potential defense?

I think the law concerning the breast-feeding exemption is poorly written. It does not specify that the woman doing the feeding is the mother OF the party being fed (or even that the latter party is a human infant), only that she IS a mother (of SOMEONE). Apparently, a mother can safely breast-feed her 27-year-old child, her "underage" (e.g. 12-year-old) "boyfriend," or even her pet Chihuahua! (During World War II, we spoke of "Gold Star Mothers" whose (possibly only) child had been killed, so presumably a woman who has any non-still birth remains a mother for life. But interesting questions include whether step-mothers and women who abort/miscarry qualify under the law at issue.)

The law does not address the issue of time, so a mother can presumably expose her breast's nipple and areola for a non-zero interval of time when preparing or persisting to breast-feed. Is there any case law to establish a "reasonable" limit to this time, and if not, does this then provide a defense for a mother who can claim she was intending to undertake the breastfeeding of SOMEONE?

Please note that it is NOT especially odd to forgo mandating that a mother feed her own child to enjoy protection from prosecution. In centuries past, the European upper classes would engage a lower class woman who was lactating to feed their infants; recall that Shakespeare's 13-year-old Juliette was accompanied by her ("wet") "nurse," who had nursed her in infancy. (This sort of relationship also gave rise to the name anglophones use to refer to a physician's assistant; the Germans use "(sick)sister" (as in R.C. nun) and the French "auxiliaries" instead.)

As for the question of age, lately it has become rather fashionable to undertake "attachment parenting" in the US, whereby children are breast-fed by their mother long after infancy has ended. (According to a book written by a Nordic explorer which I read long decades ago, it was not exotic for tribal Arctic women to feed children until they reach puberty.) And the famous Steinbeck novel The Grapes of Wrath even includes an act of so-called Roman Charity.

I could go on and on. There certainly are many open questions with the laws as written, at least for a limited number of acts which might disturb some of the most sensitive residents of Arizona. Needless to say, things are not the same everywhere. For a generation, North American women present in Ontario or New York State have had the right to go top-free any place a man could (and implicitly, without regard to their age). And in Munich, Germany people can sun themselves entirely nude in the public park - although some minimal clothing is required when using public transit.

May one have an orgasm in public? How about an audible one? At least under the laws above, there is no prohibition, although one wonders if other laws address such potential types of "indecent" behaviour. In fact, woman can sometimes orgasm when nursing; do they have any protection in Arizona because they are undertaking the act of nursing?

I won't explore the issue of eliminations (#1, #2, period-flow, sneezing, spitting) in public. All sorts of curious questions arise in these matters when one looks in any detail at them!