State v. House

676 P.2d 892, 66 Or. App. 953, 1984 Ore. App. LEXIS 2566

• Court: Court of Appeals of Oregon
• Decided: February 8, 1984
• Docket: 82-0265; CA A25766
• Status: Published

Opinions

NEWMAN, J.

Defendant was convicted, after a jury trial, of engaging in sexual conduct in a live public show and sentenced to pay a fine. The indictment charged that defendant

«* * * on Qr about the 7th day of January, 1982, in Washington County, Oregon did unlawfully and knowingly engage in sexual conduct, to wit: by touching his genitals, pubic area and buttocks against female spectators and customers, whose names are unknown and by allowing the above-said female spectators and customers, whose names are unknown, to touch the said defendant dancer’s genitals, pubic area and buttocks, in an act of apparent sexual stimulation or gratification, in a live public show at the Chase Restaurant and Lounge located at 9242 SW Beaverton-Hillsdale Highway, Beaverton.”

Defendant assigns as error that the trial court overruled his demurrer to the indictment. He argues that the statute upon which the indictment is based is void for vagueness under Article I, section 21, of the Oregon Constitution, is overbroad under Article I, section 8, of the Oregon Constitution, and violates the First and Fourteenth Amendments to the United States Constitution. Because we hold that ORS 167.062 is overbroad, violates Article I, section 8, and reverse, we do not reach the federal constitutional questions. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983).¹

Defendant was a male dancer at the Chase Lounge. He removed his cowboy outfit and danced in front of an all-female audience wearing only a “male G-string,” which a witness described:

“* * * It is a nylon, small, less-than-bikini underwear. I mean, there is hardly anything there. It was very thin material. It was narrow-banded on the hips, very thin band down between the buttocks area. The front was — Well, the genitals were covered but barely. It was kind of stretchy material, so, uh, all the shapes visible. It was just the minimum amount you could use to cover your genital area.”

As part of his dance, defendant left the stage and danced among the tables in the audience. Members of the audience touched defendant’s buttocks or genitals while placing money in the front, back and side of his G-string. Members of the audience also reached out and touched defendant’s buttocks and genitals as he passed down the aisle.

ORS 167.062, on which the indictment was based, provides:

“(1) It is unlawful for any person to knowingly engage in * * * sexual conduct in a live public show.

* * * *

“(5) As used in ORS 167.002, 167.007, 167.087 and this section unless the context requires otherwise:

“(a) ‘Live public show’ means a public show in which human beings, animals, or both appear bodily before spectators or customers.

“(b) ‘Public show’ means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded.”

Sexual conduct is defined in ORS 167.060(10) as

“* * * human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”²

Accordingly, ORS 167.062 prohibits (1) human masturbation, sexual intercourse, or any touching in a live public show of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, (2) whether alone or between members of the same or opposite sex or between humans and animals (3) in an act of apparent sexual stimulation or gratification.

The words “human masturbation” and “sexual intercourse” are explicit. Similarly, the words “any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals” are clear. If vagueness exists in the statute, it is in the words “in an act of apparent sexual stimulation or gratification.”³ We give to those words, however, a meaning that is definite and avoids vagueness “with reasonable fidelity to the legislature’s words and apparent intent.” See State v. Robertson, 293 Or 402, 411, 649 P2d 569 (1982). Any touching of the described areas that is “in an act of apparent sexual stimulation or gratification” means any touching of the described areas that a reasonable person would perceive as sexually stimulating or gratifying.

So interpreted, however, the statute is overbroad.⁴ It prohibits expression that is protected by Article I, section 8, which prohibits passage of any law “restraining the free expression of opinion, or restricting the right to speak, write or print freely on any subject whatever * * When a law is challenged on its face as unconstitutionally overbroad under Article I, section 8, we do not consider whether the conduct of the person challenging the enactment is constitutionally protected. State v. Robertson, supra, 293 Or at 412; Marks v. City of Roseburg, 65 Or App 102, 670 P2d 201 (1983). If the terms of the statute prohibit or restrain expression that comes within the protection of Article I, section 8, it is unconstitutional.

In ballets, operas, musicals and dramas, whether tragic, comic or satirical, one performer, either in human or animal costume, may touch the buttocks, breasts or genitals of another performer. The other person touched may, as part of the performance, respond so that a reasonable person in the audience will perceive that the performer touched is sexually stimulated or gratified. To a reasonable person, the touching is “in an act of apparent sexual stimulation or gratification.” That is the message that the performers seek to convey. It is touching that the statute makes criminal. It is also expression that is protected by Article I, section 8. Live public shows that would fall under the sweep of the statute include Shakespeare’s “Romeo and Juliet,” the musicals “South Pacific,” “Hair,” and “Oh! Calcutta,” the ballets “Swan Lake,” and “Leda and the Swan,” and Tennessee Williams’ dramas “Sweet Bird of Youth” and “Cat on a Hot Tin Roof.”

Because the statute is overbroad and prohibits expression protected by Article I, section 8, we may not construe the statute to narrow its scope. See State v. Robertson, supra, 293 Or at 412; see also Marks v. City of Roseburg, supra, 65 Or App at 109; State v. Frink, supra.5 ORS 167.062, therefore, violates Article I, section 8, of the Oregon Constitution.⁶ The court erred in not sustaining the demurrer to the indictment.

Reversed.

1 Defendant also assigns as error that the court denied his motion for judgment of acquittal, asserting that the evidence presented was insufficient to support the jury verdict. Because we hold that the trial court should have sustained the demurrer to the indictment, we do not reach this assignment of error.

2 The legislature did not use the term “obscene,” defined in ORS 167.087(2), to describe the prohibited sexual conduct. Moreover, in State v. Tidyman, 54 Or App 640, 648, 635 P2d 1355 (1981), we held that we could not read into ORS 167.062 that definition of “obscene” or require a finding that the touching is “obscene” before we would find prohibited touching. See also State v. Frink, 60 Or App 209, 653 P2d 553 (1982).

3 In State v. Blocker, 291 Or 255, 260, 630 P2d 824 (1981), the court stated that:

“ ‘Vagueness’ means that a penal law is stated in terms from which those to whom it is addressed — potential defendants, prosecutors, courts, and jurors cannot discern what conduct the lawmaker did or did not mean to include in the prohibition. Such a failure of communication in penal laws has been held to contravene article I, section 21 of the Oregon Constitution because ‘they not only allow a court or a jury to define a crime but to do so after the fact,’ Megdal v. Board of Dental Examiners, 288 Or 293, 298, 605 P2d 273 (1980), citing State v. Blair, 287 Or 519, [21,] 601 P2d 766 (1979) * *

Article I, section 21, of the Oregon Constitution provides in part:

“No ex post facto law * * * shall ever be passed. * * *”

⁴

“ ‘An “overbroad” law, * * * is not vague, or need not be. Its vice is not failure to communicate. Its vice may be clarity. For a law is overbroad to the extent that it announces a prohibition that reaches conduct which may not be prohibited. A legislature can make a law as “broad” and inclusive as it chooses unless it reaches into constitutionally protected ground. The clearer an “overbroad” statute is, the harder it is to confine it by interpretation within its constitutionally permissible reach.’ ” State v. Blocker, supra, 291 Or at 261.

5 As stated in State v. Frink, supra:

“* * * we would be inviting legislation proscribing free expression, leaving it to the courts to protect that freedom in individual cases. We may not do that.” 60 Or App at 216.

6 In State v. Tidyman, supra, the indictment charged under ORS 167.062(3) that defendant directed, managed, financed or presented “a live public show in which the participants engaged in * * * sexual conduct.” The defendant moved unsuccessfully to dismiss the indictment. We did not consider the Oregon constitutional questions including whether the statute was overbroad under Article I, section 8, or vague under Article I, section 21, but ruled that ORS 167.062 was not unconstitutional on its face under the First Amendment to the United States Constitution. Tidyman relied on City of Portland v. Derrington, 253 Or 289, 451 P2d 111, cert den 396 US 901 (1969), and State v. Brooks, 22 Or App 30, 537 P2d 574 (1975), rev on other grounds 275 Or 171, 550 P2d 440 (1976), neither of which arose under ORS 167.062, or considered Article I, section 8, or Article I, section 21, of the Oregon Constitution.