The Volokh Conspiracy
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You're 18 and Having Sex with 14-Year-Old? No Problem (in Arkansas). But Better Not Show Your Genitals!
From Kidd v. State, decided today by the Arkansas Court of Appeals, in an opinion by Chief Judge Brandon Harrison, joined by Judges Rita Gruber and Kenneth Hixson:
Kidd and M.C. met at a private high school with ten to fifteen students. She [Kidd] was a senior. He [M.C.] was in ninth grade. Kidd was about three years, nine months older. They exchanged DMs (direct messages) on Snapchat, Instagram, and Pinterest. The conversations went where one might guess.
During Spring Break in March 2021, the two had sexual intercourse at least seven times, mostly in Kidd's parked car. She was then eighteen; he was fourteen. M.C.'s parents found out. The prosecution that followed revealed that virtually everyone involved had made some mistaken assumptions about what sexual conduct between Kidd and M.C. was or was not prohibited by Arkansas law.
Kidd had assumed that, because of her and M.C.'s ages, sexual intercourse with M.C. was a crime. She told him in one message that if she became pregnant with his baby, she would have to give birth in jail. M.C.'s parents also believed sexual intercourse between Kidd and M.C. was illegal, and testified so at the bench trial.
In truth, it was not a crime for Kidd to "engage in sexual intercourse" with M.C.—at least it was not a sexual assault, the crime she probably had in mind (and which the State might rather have charged). It would have been second-degree sexual assault for Kidd, who was "eighteen years of age or older" to engage in "sexual contact with another person who is [l]ess than fourteen (14) years of age." But M.C. was fourteen. It would have been fourth-degree sexual assault if, at "twenty (20) years of age or older" she had "[e]ngage[d] in sexual intercourse or deviate sexual activity" or "sexual contact" with a person under sixteen. But Kidd was younger than twenty.
So Kidd's sexual contact and sexual intercourse with M.C. was not sexual assault by statutory definitions. Some prosecutors might have stopped there. This one didn't.
The State's first attempted workaround was to charge Kidd with the solicitation offense in section 110(a)(1)(A) of the sexual-indecency statute. The statutory elements would encompass a person Kidd's age who "solicit[ed] another person who is less than fifteen (15) years of age"—as M.C. was—"to engage in sexual intercourse."
But we had held in Worsham v. State (Ark. App. 2019) that section 110(a)(1)(A) was unconstitutional as applied to solicitations sent by an eighteen-year-old (✓Kidd) to his fourteen-year-old (✓M.C.) girlfriend. Engaging in (instead of requesting) sexual intercourse with her would have been lawful for Worsham {[o]r at least not a sexual assault}. So the solicitation offense in section 110(a)(1)(A), which directly regulates speech, was subject to strict scrutiny under the First Amendment …. We held it was not narrowly tailored to protect the State's stated interest in protecting children from communications from older teens and adults soliciting sex. If the State wanted to do that, it was required to prohibit the sexual conduct itself, not speech soliciting conduct that remained lawful.
The solicitation charges against Kidd promised a rerun of Worsham, and she moved to dismiss them on many of the same grounds. But Kidd had done much more than speak to M.C.: He would testify at her bench trial that he could see Kidd's vagina when he was performing oral sex on her and having vaginal intercourse with her. He confirmed that she had wanted him to see "it" and had enjoyed doing so.
The State saw another workaround. The elements of the exposure offense in section 110(a)(2)(A) of the sexual-indecency statute could also encompass an eighteen-year-old's conduct with a fourteen-year-old:
A person commits sexual indecency with a child if [w]ith the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of another person, the person purposely exposes his or her sex organs to another person who is less than fifteen (15) years of age.
The State filed an amended information charging Kidd with six counts under that provision, which it argued focused on conduct, not speech….
The circuit court … found Kidd guilty of one count of sexual indecency with a child under section 110(a)(2)(A), committed between November 2020 and April 2021. It acquitted her of the other counts, sentenced her to two years' probation, imposed a $1,000 fine and statutory fees, and ordered her to register as a sex offender.
The court rejected Kidd's argument that the exposure offense is unconstitutional under Worsham:
First, the exposure offense in section 110(a)(2)(A), which the State characterizes as a prohibition on "the act of exposing sex organs to a child in person, in the flesh" does not present the free-speech concerns that controlled in Worsham. Although the First Amendment's protections are not limited to the written or spoken word, the United States Supreme Court has rejected the view that a "limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea[.]" Rather, conduct must be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments[.]"
As the State notes, the exposure provision in section 110(a)(2)(A) was originally codified in the indecent-exposure statute. We have interpreted the term "expose" in section 110 to mean "laying open to view." In Krol v. State, we affirmed a conviction where a Walmart employee noticed in surveillance footage that the defendant had walked up behind three children and exposed his penis as he stood behind them. No one had reported the incident; the children were never identified. It was not clear they saw anything. We held that section 110(a)(2)(A) did not require proof that they had "because the plain language of the statute does not contain any explicit requirement that the child observe the act."
We infer that the defendant in Krol acted to "arouse or gratify a sexual desire" peculiar to the transgressive act of exposing his sex organs near children, even if they were not aware he had done so. That wholly self-gratifying conduct might be closer to the typical application of section 110(a)(2)(A) than Kidd's conduct here. But our affirmance in Krol demonstrates that section 110(a)(2)(A) restricts nonexpressive conduct: it applies even if no one but the defendant knows, or is intended to know, about the exposure. "Being 'in a state of nudity' is not an inherently expressive condition."
Kidd's own exposures of sex organs, as M.C. described them at trial, were what might be called functional nudity, not expressive nudity. After the State elicited that M.C. could see Kidd's vagina the first two times they engaged in sexual conduct, he testified they had vaginal intercourse on another occasion. This examination followed:
PROSECUTING ATTORNEY: Could you see it?
MINOR CHILD: Yes.
PROSECUTING ATTORNEY: Did she want you to see it?
MINOR CHILD: Yes.
PROSECUTING ATTORNEY: Did she enjoy it?
MINOR CHILD: Yes….
PROSECUTING ATTORNEY: So, how could you tell that she wanted you to look at it?
MINOR CHILD: She wanted it.
PROSECUTING ATTORNEY: And when you say, "She wanted it," what do you mean?
MINOR CHILD: She wanted to have sex with me….In Worsham, the absence of a prohibition on sexual intercourse set up a constitutional right, not a statutory right: If doing X with a person is lawful, a restriction on speech soliciting the person to do X has to pass strict scrutiny. We reviewed for overbreadth because the defendant had a constitutional right to speak to his girlfriend, not a right—of any kind—to have sex with her….
In that posture, we're left with three statutes. Section 110(a)(2)(A) makes it a Class D felony for Kidd to expose her sex organs to M.C. The other statutes do not separately prohibit the sexual intercourse that followed. The statutes establish different offenses for acts that might—but might not—occur close in time between the same people. We are not persuaded the General Assembly meant to license everyone whose sexual contact is not sexual assault to engage in related conduct that is expressly prohibited by other statutes. Nor are we persuaded by Kidd's contention that her conviction under section 110(a)(2)(A) infringed upon her constitutional rights.
There might be merit in Kidd's argument that the exposure offense in section 110(a)(2)(A) creates a complicated, even surprising, interaction with statutes that might be mistakenly understood to establish a single "age of consent." But the State did not "create offenses" by construction or intendment by employing section 110(a)(2)(A) here. The General Assembly created the offense by enacting its terms.
My question (besides noting the absurdity of a state scheme that allows sex but criminalizes showing genitals, including during sex): Was there really enough here to prove, beyond a reasonable doubt (at least based on the quoted testimony), that Kidd exposed her vagina "[w]ith the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of another person"?
M.C. testified that, when he said "she wanted it," that meant "she wanted to have sex." He didn't testify that Kidd had the purpose of satisfying the sexual desire through the exposure of her genitals; the exposure may indeed have been just functional in the sense of that it was convenient to having sex, which is what gratified sexual desire. (It's certainly possible that she also got turned on by showing her genitals, or wanted to get M.C. turned on that way, but I just don't see how that motivation was proved beyond a reasonable doubt.)
Or is the court's implicit view that, to "purposely expose[] … sex organs" with "the purpose to arouse or gratify a sexual desire," it's enough to expose them just as a step towards having sex, even when the sexual gratification would come entirely from the sex and not the exposure? If M.C. and Kidd had made clear that neither was trying to turn either on by watching, but were solely interested in doing, would the crime of indecent exposure to a 14-year-old (with whom Kidd was lawfully having sex) still have been committed?
Joseph Karl Luebke represents the state.
