State v. Brooks

550 P.2d 440, 275 Or. 171

• Court: Oregon Supreme Court
• Decided: June 4, 1976
• Docket: C74-05-1335 Cr; C 74-03-0930 Cr; C 74-08-2469 Cr; C 74-11-3620 Cr; C 74-06-1918 Cr; C 74-05-1580 Cr; C 74-07-2277 Cr; C 74-07-2278 Cr; C 74-06-1981 Cr; C 74-04-1054 Cr; C 74-06-1983 Cr; C 74-08-2470 Cr
• Status: Published

Opinions

McAllister, j.

The seven defendants were each convicted of public indecency in violation of ORS 163.465. The convictions were affirmed by the Court of Appeals. 22 Or App 30. We granted review.

ORS 163.465 reads in pertinent part as follows:

"(1) A person commits the crime of public indecency if while in, or in view of, a public place he performs:

‡ ‡ ‡ ‡ ‡

"(c) An act of exposing his genitals with the intent of arousing the sexual desire of himself or another person.”

It was stipulated at trial that each of the defendants did knowingly expose her genitals with the intent of arousing the sexual desire of another while dancing on the stage of the Old Chelsea Theatre in Portland. It was necessary for any individual to pay a fee of $5 to gain admission to the theater and no one could see the performance except from the portion of the theater where the patrons were seated. The Old Chelsea Theatre did not allow anyone under the age of 18 years to enter the premises and advertised that fact and further indicated the type of entertainment offered and warned that those who would be offended by nudity should not enter.

Defendants challenge their conviction on two grounds. They first contend that they did not violate ORS 163.465 because the theater in which they performed was not a public place as defined by ORS 161.015(9). They also contend that ORS 163.465 is unconstitutional because it does not require a finding of obscenity as a prerequisite to proscribing constitutionally protected expression.

The term public place is defined in ORS 161.015(9), as follows:

" 'Public place’ means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation.”

The public indecency statute, ORS 163.465, was passed as a part of the Oregon Criminal Code of 1971 and apparently was intended to replace the former statute proscribing indecent exposure, which was usually committed in places to which the public had free access.

ORS 167.060, which was also a part of the Oregon Criminal Code of 1971, deals with obscenity and related offenses and describes an obscene performance to mean "a play, motion picture, dance, show, or other presentation * * * performed before an audience * * * »

Since ORS 161.015(9) was also enacted as a part of the Oregon Criminal Code of 1971 it seems clear that if the legislature had intended the definition of a public place to include an obscene performance performed before an audience it would have so indicated in ORS 161.015(9).

Instead, the legislature defined a public place to include places where the public may enter at will. The term "places of amusement” in ORS 161.015(9) is used in conjunction with the terms "parks” and "playgrounds” and we think was not intended to include theaters where plays, motion pictures, dances, shows, or other presentations could be "performed before an audience.” It seems apparent that the legislature intentionally differentiated between a "public place” and theaters and like places where entertainment is "performed before an audience.”¹

In revising the Oregon laws regulating obscenity as part of the Criminal Code of 1971, the legislature defined "obscene performance,” but chose to make the exhibition of such performances a crime only when it was displayed to minors. ORS 167.060(6); 167.075. The official Criminal Law Revision Commission Commentary to the Proposed Oregon Criminal Code outlined the purpose of the new obscenity law as follows:

"Sections 256 to 259 [now ORS 167.065 to 167.080] comprise the heart of the obscenity article which is aimed at prohibiting the dissemination of obscene materials to the young.

"* * * The draft focuses on two points: the dissemination of certain types of materials to minors, and public displays of certain materials. No attempt is made to control or limit any other adult activity in this area.” (Emphasis added.) Commentary at 248.

The public displays referred to were the public displays of nudity or sex for advertising purposes, codified in ORS 167.090. The Commentary to that section stated:

"This section attacks the problem of public displays of materials that may offend persons who are unwillingly subjected to them. * * *” (Emphasis added.) Commentary at 253.

In 1973 the legislature chose to expand the obscenity laws by enacting ORS 167.062 which proscribed sadomasochistic abuse or sexual conduct in live public shows and ORS 167.087 which proscribed the dissemination of obscene material to adults. These laws were referred to the people by referendum petition for a vote in the November 1974 general election and went into effect on December 5, 1974.

It appears from the stipulated facts that the nude dancing by the defendants on April 24, 1974 would be encompassed by the definition of "obscene performance” but was not prohibited under the obscenity laws in effect at that time as not performed for minors or displayed for advertising purposes. It was stipulated that on occasion the defendants touched the faces of various patrons with their bare breasts. These facts indicate that the performance after December 5, 1974 would have been proscribed as sexual conduct in a live public show under ORS 167.062.

It is reasonable to interpret ORS 163.465 as a statute designed to protect the public from unwanted and shocking displays. A theater where patrons are forewarned and viewing is limited to those patrons does not satisfy the statutory definition of a public place. The performance in the Old Chelsea Theatre was limited to willing viewers and was not prohibited by ORS 163.465, although it now may be prohibited under ORS 167.062.

The case is remanded to the Court of Appeals with instructions to reverse the judgment of the trial court.

1 A similar conclusion was reached in People v. Conrad, 70 Misc2d 408, 334 NYS2d 180, 183, where the court said:

"* * * Whatever the exact scope of application, it cannot be reasonably argued that this section is to apply to performances inside a building which cannot as here, be observed by anyone outside of said building.”

This case is of particular interest because our public indecency statute was copied from the Connecticut statute, which, in turn, was based on the New York statute proscribing public indecency.