Robert Gehrke: This flimsy criminal case should reshape Utah’s lewdness law

Robert Gehrke

Tilli Buchanan says that when her stepkids walked in on her without a top on, she thought she could use it to teach them about double-standards when it comes to perceptions of the female body.

Instead, she was charged with a crime and her case has sparked a debate over our concepts of public decency and the government’s power to enforce it, even in one’s own home. And, if she is successful, Buchanan could see Utah’s law prohibiting women from being topless in public struck down as discriminatory.

“I was devastated,” Buchanan told my colleague, Jessica Miller. “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.”

There is some dispute over the facts: Buchanan’s lawyers assert she took her top off after hanging insulation that was irritating her skin and then the kids came down the stairs unexpectedly, at which point she explained that they shouldn’t be shocked to see a woman’s body.

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

The West Valley City prosecutors allege Buchanan and her husband were working in the garage, she removed her top in the presence of her stepchildren and refused to put it back on unless her husband showed the male children his penis.

It was roughly a year after the alleged incident, according to Buchanan’s attorney, before “the state was made abreast of this seemingly unremarkable domestic scene” — although we can’t say for sure, because prosecutors don’t actually know exactly when it happened.

(By the way, someone should file a bar complaint over the lawyer’s terrible pun.)

The case seems flimsy given the competing narratives, the time that lapsed before police got involved and the challenge for prosecutors in proving she knew her actions would cause “affront or alarm” (as required by the law).

But the consequences could be severe. Buchanan could be locked up for a year or more and put on the state sex offender registry for a decade, like she’s some serial predator — a tactic that looks as if the registry is being weaponized to put pressure on the defendant.

She’s fighting the charges, but she’s fighting more than that.

Buchanan insists the entire point she was trying to make to her children was that there is a double-standard in the way society treats male bodies versus female bodies. And now her lawyers are making a pretty compelling case that Utah’s lewdness laws rely on the same double-standard and are discriminatory and unconstitutional.

If I take my shirt off in public, for example, people might be disgusted by my pasty white skin and paunchy belly. While nobody wants to see that, I wouldn’t end up in jail and on the sex offender registry for it.

Yet here we have a case where a woman took her shirt off in the privacy of her home and is facing those sorts of dire consequences, and that’s not how the law is supposed to work.

Lawmakers, for example, can’t say, “The speed limit is 65 mph for men but 45 for women, because, you know, lady drivers.” The law is supposed to treat people the same, regardless of race, religion or breasts.

And recently, the 10th Circuit appeals court reached that very conclusion, ruling that a Fort Collins, Colo., ordinance was unconstitutional because it subjected women to different treatment than men.

There is some nuance here. Utah’s lewdness statute requires prosecutors to show a woman should know that revealing her breasts “will likely cause affront or alarm” or is meant for sexual gratification. The Colorado ordinance had no intent requirement and presumably would treat a random nip-slip the same as strippers in the park.

But the underlying concept is the same: That the government has to show a compelling reason to treat women different from men, and it seems that simply asserting that it’s always been that way or society has sexualized women’s breasts doesn’t cut it.

Utah attorneys contend wiping out unique treatment of a woman’s breast means child molesters could go free if they only touch a girl’s breast. That not only seems alarmist, but if prosecutors would throw the book at someone who touches a girl’s breast, but shrug and move on if the victim is a boy, then lawmakers have more than one law to fix.

Fort Collins warned of topless women parading past playgrounds and distracted men smashing their cars. (No, really, that was the rationale).

The court noted that neither Boulder nor Denver, which have no ban on the breast, have suffered those catastrophes — and it seems far-fetched that Utah will suffer a massive toplessness outbreak.

In the larger sense, we need to come to terms with a basic reality: That women’s bodies are their own. They don’t belong to the government and shouldn’t be regulated any differently than the bodies of the men who made the laws. So if Buchanan’s case — which never should have been filed in the first place — furthers that understanding, maybe we’re making some progress.