dissenting.
I respectfully dissent. In order to satisfy the due process requirements of the United States and Indiana Constitutions, a penal statute must be sufficiently explicit so as to inform individuals of the consequences of contemplated conduct. Van Sant v. State (1988), Ind.App., 523 N.E.2d 229, 233, citing Whitewater Valley Canoe Rental, Inc. v. Bd. of Franklin Co. Commr's (1987), Ind.App., 507 N.E.2d 1001, 1004. Thus, if the challenger establishes that the statute forbids conduct in terms so vague that persons of ordinary intelligence must necessarily guess at the statute's meaning and differ as to its application, then the statute violates due process of law, is void for vagueness, and unconstitutional. Id. at 1004. Charging Turner with Aiding, Inducing or Causing Public Indecency, after he has entered into an agreed Stipulation with the County that allowed his dancers to wear "at least pasties and G-strings" and after Justice Rehnquist in the Barnes v. Glen Theatre, Inc. case, in refer*712ring to Indiana's public indecency statute, declared that if "dancers wear at least pasties and a G-string" then "the bare minimum necessary to achieve the state's purpose" has been met, would confuse many lawyers let alone people of ordinary intelligence.
Barnes has made it abundantly clear that nude dancing may be entitled to the "barest" minimum protection of the First and Fourteenth Amendments. It would be the belief of most people that the dancers were exercising their rights under the First Amendment within the confines of the statute by wearing pasties and a G-string.
A man who appears in public "showing covered male genitals in a discernibly turgid state," which is also included in the definition of "nudity," could also be arrested under this statute. It would generally be the belief of the public, however, that if male genitals were covered there would be no state's interest to protect. In the same light, the dane-ers were led to believe by a stipulated agreement and advice of counsel that pasties and a G-string were appropriate coverings. To allow a person charged with a criminal offense to have to resort to guessing about whether the G-string was wide enough or opaque enough does not properly inform the public of the criminal offense.
I agree that there are compelling state interests that are important in the regulation of public nudity but our statute defining "nudity" is not narrowly drawn to allow people to know what they are charged with. This statute only leads people to guess at its meaning and as a result the statute differs in its application.
The Indiana Supreme Court has given the Public Indecency Statute a limiting construction and has not decided whether the statute itself is vague. However, the statute as applied to the precise cireumstances of this case is vague because Turner was insufficiently informed of the consequences of his conduct.