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The man who dropped his trousers and showed his Elmo diaper to two girls in White City may be strange and antisocial, the Utah Supreme Court ruled Friday, but he's no criminal.
The state's highest judicial authority overturned the 2010 conviction of Barton Jason Lewis Bagnes in a unanimous decision Friday, saying Bagnes did not violate the laws he was sent to prison for breaking.
Bagnes, who was convicted in 3rd District Court of second-degree felony sexual exploitation of a minor and third-degree felony lewdness, has been in state prison since September 2010 for flashing his Sesame Street diaper to two 8-year-old girls.
Defense attorney Neal Hamilton, who represented Bagnes at the jury trial, praised the Supreme Court's decision, calling it a "vindication" for the 36-year-old man.
"Mr. Bagnes' conduct is certainly unusual, strange, creepy, weird. It is a lot of things; it is uncomfortable. But what it is not — it is not criminal," Hamilton told The Tribune late Friday. "We live in a society where we have rights and we have an absolute, unequivocal protection of these rights: We have the right to be weird. We have the right to be strange. We have the right to make people uncomfortable. Those rights end where criminal conduct begins."
According to the court's ruling, in order for an act to rise to the level of criminal lewdness it must be overtly sexual or expose a body part expressly outlawed by state statute.
In May 2009, Bagnes was sucking on a candy pacifier and throwing fliers folded into paper airplanes onto lawns around a White City neighborhood when the two 8-year-olds approached him.
The girls said Bagnes' shorts were low enough to show he was wearing a diaper with the little red Muppet character on its front.
One girl said he pulled his trousers down to better show them the diaper. He told the girls he wore it "for fun."
But he never removed the diaper, never made any sexual comments or gestures, never did anything to indicate he was enjoying sexual gratification from the encounter.
"In exposing his diaper, Bagnes undoubtedly startled those around him. A diaper in this context would certainly have been perceived as unusual, even disturbing," the decision said. "But it in no way resulted in the effective exposure of Bagnes's private parts."
The justices indicated that a diaper, though unusual for a grown man to wear, affords more coverage than other kinds of undergarments.
They also noted that unexposed, internal sexual gratification is not punishable by law.
"The private realization of a fetishized sexual fantasy alone would not make his conduct criminal," wrote Justice Thomas Lee. "Our Victorian past is well behind us. We no longer live in a society where our style conventions and social mores clamor for head-to-toe cover-up. The opposite is closer to the truth."
Bagnes has claimed he wore diapers because of urinary incontinence and displayed them to children to spread awareness of the medical problem. The fliers, he said, were part of his awareness campaign.
The Utah attorney general's office did not return calls for comment Friday.
Bagnes will likely not be released from prison for another month or two — depending on several factors, including whether prosecutors choose to request another hearing.
Bagnes, who was referred to as 'Diaper Boy' in media across the state throughout his legal proceedings, was first convicted of lewdness in 1999 and placed on the state sex-offender registry. Other allegations followed, but charges were either not filed or dropped because Bagnes did not expose his genitals.
When asked what concerned parents should do to protect their children from this kind of behavior, Hamilton suggested a conversation about strangers and what to do when someone makes a child uncomfortable.
"At some point that responsibility is on our own families and us as individuals," Hamilton said. " No one was hurt or abused in this case. No crime was committed. Did it make people uncomfortable? Yes. Is it weird and creepy? Yes. But it's nothing more than an example from which we can learn lessons."
Twitter: @marissa_jae