This Utah woman was charged for being topless in her own home. Now, she’s arguing the lewdness law is unconstitutional.

(Leah Hogsten | The Salt Lake Tribune) Tilli Buchanan poses for a photo outside her attorney's office Sept. 25, 2019. A teachable moment on body positivity and acceptance to her stepchildren resulted in a lewdness charge for Tilli Buchanan.

It started off as an impromptu teaching moment for her young stepchildren.

Tilli Buchanan and her husband had been installing insulation in their garage, and had stripped off their clothes just inside their home to get the itchy materials off their skin. She was topless when her stepchildren bounded down the stairs.

The children were a little embarrassed at the sight — but Buchanan told them they shouldn’t treat her differently because she was a woman. They aren’t uncomfortable seeing their dad’s chest, she told them, so it shouldn’t be different for her.

“This isn’t a sexual thing,” she recalled telling the children. “I should be able to wear exactly what my husband wears. You shouldn’t be embarrassed about this.”

But apparently state officials don’t have the same view. After getting wind of what Buchanan had thought was an innocent encounter, they filed criminal charges against the 27-year-old West Valley City woman.

She’s now facing three counts of lewdness involving a child — a class A misdemeanor. If convicted, Buchanan could land in jail and stay on the sex offender registry for the next 10 years.

She’s been fighting the case since prosecutors filed it in February, and soon, her attorney Randy Richards plans to ask a judge to find that Utah’s lewdness statute is unconstitutional because it discriminates against women.

Buchanan faces criminal penalties for being shirtless in her own home, Richards argues, while her husband was also in the same state of undress and is not charged.

“The fact that this was in the privacy of one’s own home is real troubling,” he said. “Different people have different moral positions as far as nudity.”

‘You can’t teach kids this’

Like many criminal cases, critical details are in dispute. No one can quite pinpoint when this incident took place. Buchanan thinks it happened in fall 2016, while prosecutors put the timeframe as November 2017 and January 2018.

According to Buchanan, she had been in the garage that day with her husband, wearing long-sleeved shirts and protective clothing. They were sweaty and itchy, so they stripped down to their underwear, leaving their dirty clothes near a doorway so they could take a shower. That’s when the kids — a 13-year-old boy, a 10-year-old girl and a 9-year-old boy — saw her without her top on.

West Valley City Deputy Attorney Corey Sherwin offers a different account in court papers: He alleges that Buchanan stripped down in front of her stepchildren after making a statement about how if her husband could take off his shirt, then a woman should be able to as well.

He further alleges that Buchanan, while “under the influence of alcohol,” had told her husband that she would only put her shirt back on if he showed her his penis.

The police became involved in the situation after the Division of Child and Family Services began an investigation involving the children that was unrelated to Buchanan. Though it was not the focus of the initial investigation, Sherwin wrote, the children’s mother reported it to authorities because she was “alarmed” about what had happened in front of her kids.

Buchanan, the stepmother, said she hadn’t thought about the incident much since it had happened — until a police detective called her earlier this year and asked about it. Then, weeks later, the charges were filed.

“I was devastated,” she said. “Because the moment I took to teach the kids, it was kind of smashed. Like you can’t teach kids this. In fact, you’re going to be charged for even bringing this up.”

Free the Nipple?

Richards, Buchanan’s attorney, has filed a motion asking that a judge find that Utah’s lewdness law is unconstitutional.

Much of his argument leans on a 10th Circuit Court ruling, where the appeals court sided with two Colorado women who sued Fort Collins.

The women are part of “Free the Nipple Fort Collins,” a group arguing that the city’s ban violated their right to equal protection.

Richards argues this decision is controlling in other states covered by the 10th Circuit, which includes Utah.

“Because Tilli Buchanan is a woman — and only because she is a woman — the state now seeks to condemn her as a child sex offender for engaging in the exact same non-sexual conduct as her lawfully faultless husband,” Richards wrote. “Tilli Buchanan is being singled out for prosecution solely on the basis of sex.”

(Leah Hogsten | The Salt Lake Tribune) Tilli Buchanan talks about her court case with her attorney Randy Richards in his Clearfield office, Sept. 25, 2019. A teachable moment on body positivity and acceptance to her stepchildren resulted in a lewdness charge for Tilli Buchanan.

But West Valley City prosecutors argued in response that the 10th Circuit ruling was narrowly tailored to an injunction prohibiting enforcement of a city ordinance, not a state’s lewdness statute.

They argue that Utah’s lewdness statute is different than Fort Collins’ ordinance, and does not discriminate on the basis of gender. The city attorneys further argue that if the distinction of female breasts is struck from Utah laws, it could have unintended consequences.

They argue that not differentiating between male and female breasts would affect child sex offender laws that prohibits touching a young girl’s breasts.

“This would create an absurd result,” Sherwin wrote, “albeit necessary one under such a change.”

The Fort Collins decision was released in February, but only recently was it confirmed that the city would not appeal the 10th Circuit decision to the U.S. Supreme Court.

When asked about Buchanan’s case, West Valley City Attorney Ryan Robinson declined to discuss the specifics about why they wanted to bring her case to court, saying it would violate attorney rules for a prosecutor to discuss the facts of a case before trial.

But he said this about the Fort Collins decision: “We are still in the process of reviewing the 10th Circuit case and what effect, if any, [it has] on Utah’s lewdness statute.”

‘I don’t think of myself as a criminal’

Attorneys are expected to argue Buchanan’s case on Nov. 19, a date that’s been delayed several times over scheduling issues.

In these past eight months since she was charged, Buchanan has had the case looming in the back of her mind. Her feelings of anger and disbelief have softened somewhat as her case has dragged on.

She doesn’t consider herself an activist, and said this isn’t exactly a cause she’s felt passionate about. Unlike the women in Colorado, you won’t see Buchanan topless in public waving protest signs.

“It’s not like at the forefront of my brain,” she said. “I’m not going to go sign up for the ‘Free the Nipple’ cause. I just thought, ‘This is cool, this is really awesome and natural.’ It’s not a thing to me. It’s never been a thing.”

(Leah Hogsten | The Salt Lake Tribune) Tilli Buchanan talks about her court case in her attorney's office, Sept. 25, 2019. A teachable moment on body positivity and acceptance to her stepchildren resulted in a lewdness charge for Tilli Buchanan.

It’s still not something that’s discussed within their family, and Buchanan said they’ve shielded their children from the criminal case.

But Buchanan said she’s noticed a change in herself when she’s around the kids at home. She wonders if her shorts are too short, or if she should be wearing a tank top. She worries about lounging around the house without a bra on.

She doesn’t want anything else to happen, she said, that could be interpreted as inappropriate.

“Whatever is going to happen is going to happen,” she said. “And it’s either going to go really well or it’s going to go really poorly. But, ultimately, I don’t think of myself as a criminal and so I’m going to continue as if I wasn’t a criminal.”