The Volokh Conspiracy
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On June 8, 2013, the South Dakota Highway Patrol received a report of a small red car traveling eastbound on Interstate 90, weaving all over the road and going into the ditch or median with all four tires. A trooper used radar and registered the car traveling 112 miles per hour. The trooper attempted to catch the vehicle for approximately four miles, and was finally able to do so when the vehicle slowed because of traffic.
The trooper activated his lights, and the driver of the car pulled over and identified himself as Douglas James Myers. There were two small children in the back seat and one in the front seat. Upon approaching the vehicle, the trooper smelled the strong odor of alcohol, noticed Myers's eyes were bloodshot, and saw Myers stagger as he walked. A urinalysis showed positive for marijuana, and a blood sample revealed that his blood contained .131 percent alcohol by weight. Myers subsequently stipulated to these facts for his court trial.
Myers pleaded guilty to driving under the influence (his third offense); but he was also charged for violating S.D. Codified Laws 26-10-1, which provides that "[a]ny person who abuses, exposes, tortures, torments, or cruelly punishes a minor" is guilty of a felony. He argued that the term "expose" in the law was unconstitutionally vague, but the trial court rejected the argument and found him guilty, sentencing him to five years in prison on the "expose" charge.
Myers appealed to the South Dakota Supreme Court, which rejected his argument:
Since the parties stipulated that Myers did not commit any acts of abuse, torture, torments, or cruel punishment as listed within SDCL 26-10-1, the only word that we must construe is "expose." Myers asserts that because the word "expose" is not defined in the statute, ordinary citizens cannot know what conduct constitutes "expose," but not aggravated assault, in violation of the statute. …
"Expose" is, inter alia, defined in The American Heritage College Dictionary 483 (3d ed. 1993), as "[t]o subject to needless risk." The statute need not enumerate a list of every potential thing that a child could be exposed to in order to constitute felony child abuse. The definition of expose includes those things or scenarios; it is those that "subject [a child] to needless risk." "Risk" is, inter alia, "the possibility of suffering harm or loss; danger." Therefore, we conclude that the statute provides sufficient notice to the ordinary citizen as to what conduct would constitute an offense under SDCL 26-10-1, because the very definition of expose explains what a child must be "exposed to" as Myers asserts the statute would need to do in order to be constitutional….
Myers next asserts that he cannot be convicted under the statute because prosecutors and police have unfettered discretion to decide when to charge someone under the statute. Myers offers a hypothetical scenario of a parent taking a child to a violent movie as being a potential violation of the statute…. [But] there is no uncertainty about the normal meaning of expose. There is also no confusion about what exposure would result in a violation of the statute. As a result, we are not persuaded that this provides police and prosecutors unfettered discretion to charge a citizen for things such as taking a child to a violent movie. Such an act does not subject the child to needless risk….
Furthermore, as we recently explained …, a "vagueness challenge that do[es] not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity.'" On the stipulated facts of this case, we find it unpersuasive that applying the statute to Myers's actions—driving at a speed in excess of 100 miles per hour while intoxicated, which put the children's lives in jeopardy, even where no actual physical harm results—is an unconstitutional application of the statute. The situation that Myers put these children in is clearly one in which the children were subjected to needless risk….
This seems to me to be wrong (reprehensible as Myers' conduct was). I don't think that English speakers normally view "expos[ing]" in a minor, without a "to __" clause, as simply "exposing to needless risk." True, "expose" may be defined as (for instance) "to lay open to danger, attack, harm, etc." But that's the meaning of the word in a phrase such as "to expose soldiers to gunfire; to expose one's character to attack" (the examples given in the dictionary I just quoted). It's not generally a meaning of "expose" standing alone, unless some context strongly suggests it.
Rather, I think that "expos[ing]" a child, absent some more specific contextual cues, generally means intentionally leaving a child exposed to the elements. In the words of one dictionary published around 1903, when the South Dakota statute was enacted,
To place or leave in an unprotected place or state; specifically, to abandon to chance in an open or unprotected state; as, among the ancient Greeks it was not uncommon for parents to expose their children.
Likewise, a 1907 dictionary expressly defines expose as "to lay forth to view; to deprive of cover, protection, or shelter; to make bare; to abandon (an infant); …." Likewise, see, e.g., State v. Sparegrove (Iowa 1907), which used the phrase "exposing a child under the age of six years"—with no further elaboration at that point—to describe the crime of "expos[ing a] child in any highway, street, field or outhouse, or in any other place with intent wholly to abandon it."
Here's one way of looking at it. (Recall that the court is viewing "expose" as a normal English word here, not as a legal term of art.) Say someone e-mails you saying, "It's outrageous—this drunk driver exposed his children!" You respond by saying, "What exactly do you mean?" The answer you get: "I mean he drove drunk at 112 miles per hour, which was very risky—you know, he exposed them." Would you suspect that your correspondent is not an experienced English speaker?