The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Thursday's Maine high court decision in State v. Legassie, Andrew Legassie (then in his early 20s) had sent, to five girls aged 14 to 17, "explicit digital images" of himself exposing his genitals. "There is no evidence of any in-person contact that formed the basis of the alleged crimes." He was prosecuted, among other things, for "indecent conduct," which makes it a crime when
In a private place, the actor exposes the actor's genitals with the intent that the actor be seen from a public place or from another private place.
The prosecution argued that the statute applies not just to in-person exposure but also to exposure by sending visual images. No, said the court, in part because the consequence would forbid consensual sharing of sexual photographs among adults:
The State's interpretation of section 854(1)(B), which could subject to criminal liability any individual seen exposing his or her genitals by another in person or in a photograph, would present serious constitutional problems because section 854(1)(B)contains no "affront or alarm" requirement. [Footnote: Although indecency statutes have generally withstood constitutional challenges, those statutes include elements that consider state of mind or consent—generally that the defendant's exposure cause offense, annoyance, or alarm. …] The State's construction of section 854(1)(B) could therefore not only criminalize private behavior between consenting adults, but also subject to prosecution individuals who appear in photographs, which could burden well-established free speech and due process rights. See Lawrence v. Texas (2003) (recognizing two consenting adults' due process right to engage in homosexual acts in their private lives and striking down a criminal sodomy statute); Reno v. ACLU (1997) ("In evaluating the free speech rights of adults, we have made it perfectly clear that [s]exual expression which is indecent but not obscene is protected by the First Amendment.").
Ultimately, because we conclude that the statute does not apply to Legassie's conduct, it is unnecessary to speculate about the various ways in which an individual could commit the crime of indecent conduct. We simply conclude, considering the ambiguous legislative history, the rules of lenity and strict construction applicable to criminal statutes, and our obligation to avoid, if possible, an unconstitutional interpretation of a statute, that as reprehensible as Legassie's behavior was, section 854(1)(B) cannot be stretched to meet the facts of this case. [Footnote: Whether Legassie could have legitimately been charged with disorderly conduct, 17-A M.R.S. § 501-A (2016), or disseminating obscene materials to a minor, 17 M.R.S. § 2911 (2016), is not before us.] We hold that a digital photograph transmitted over the internet is legally insufficient to constitute an "exposure" pursuant to section 854(1)(B). …
Sounds clearly right to me, though note that a Michigan appellate court has indeed read public nudity as applying to video transmissions of nudity (to the point that, I argued, this would make it a crime for cable companies to offer HBO in Michigan, under the terms of that particular statute). The Michigan Supreme Court regrettably declined to consider that case.
Legassie was also convicted of other crimes, including soliciting (and, in some instances, receiving) nude photos from the girl themselves; those convictions were mostly upheld, though only after an interesting discussion of how the "best evidence" rule applies to photographs. (That rule generally requires that writings be proved, when possible, using their originals, rather than witness accounts of what the writings contained.)