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Abstract

If a person exposes his or her genitals to a minor in private or in public, that person would be guilty of indecent exposure. But if a person exposes his or her genitals to a minor over video chat, no harm, no foul. Similarly, if a person exposes his or her genitals to a minor via text message, there are no repercussions. Why is it that the same act—when done through a screen—functions like a loophole to a crime? The reason for this “loophole” is because of a misunderstanding of the crime of indecent exposure. The crime was developed, not as a protection from molestation or sexual assault, but against the unconsented and offensive viewing of another’s genitals. The crime was then extended to protect children as society recognized the importance of safeguarding children from adult sexual behavior. Looking back to the policy reasons for why this crime was developed and seeing the harm that the law was trying to avoid, it is clear that the same harm exists both in person and online. But when the law was developed, the Internet was not a “thing.” The language of indecent exposure statutes reflects the old common law that did not anticipate the existence or pervasiveness of Internet access. But technology marches on, and with it comes an entirely new arena for the law to struggle with.

There are two hurdles to jump through with these statutes: (1) “physical presence” or “public place” and (2) whether exposure through a screen is actually “exposure.” Some states have a “physical presence” or “presence” requirement, meaning that exposure must happen in the “physical presence” of another person. This makes sense—because a person should not be held criminally liable for another person hearing about an exposure through the grapevine. The “physical presence” terminology does not exclude a technological “physical presence” though. In fact, some courts have interpreted the presence requirement as consistent with exposure via online platforms because the same act targets a specific person, whether online or in person. Other statutes use the “public place” language instead of the “physical presence” language. However, even though “public place” seems to indicate that the exposure must occur in a public place, courts have long interpreted the language to mean any place in which the defendant knows or should know another person would see him exposing himself. Thus, “physical presence” and “public place” mean the same thing, and both have the same “presence” problem.

The second hurdle is the exposure itself. Lawyers have argued that exposure through a screen is not really “exposure” because a victim only sees the “likeness” of another’s genitals and not their actual genitals. However, the policy reasons behind the criminalization of indecent exposure support the extension of the crime to online platforms. In 1550, these statutory requirements made sense because a person could not video chat and expose his genitals through a phone. In the modern age of the Internet, though, people have easy access to communicate with each other. With more access to others, there tends to be more harm done. That same harm that early legislators were worried about is happening today—only now through a screen. And even though early legislators may not have anticipated the ability to expose oneself over video chat, it cannot be an acceptable answer that the same act with the same intent and the same outcome is a crime in person but not through a device.

With these concerns in mind, some states have interpreted their existing laws to include online platforms, while a few have even crafted new laws specifically for online exposure. Some of these attempts to craft new statutes have been invalidated due to constitutional concerns such as free speech. Other statutes have survived constitutional scrutiny and serve as examples for other states. There are three options for states to attack this issue: extend the interpretation of current statutes to include online platforms, adopt an existing state statute across the board, or craft a new statute. Throughout this Comment, I will explore all three options with the end goal of finding a solution that is both effective in terms of protecting children and constitutional.

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