(dissenting) — I cannot agree with the majority. It applies general rules which have no application in the context of the facts in this case and misconstrues the cases it cites as supporting its conclusions. The facts presented do not constitute a crime under any reasonable interpretation of the ordinance in question. The City of Seattle has the power to enact an ordinance prohibiting public nudity. *611It must exercise its power, however, through an ordinance which does not discriminate or arbitrarily exaggerate the severity of the crime. It is not the definition found in the dictionary of "lewdness" which controls in this case, but rather the City's act of equating public exposure of breasts, without requiring an intent to excite a sexual response in the beholder or conduct which would naturally appeal to the viewer's prurient interests, with such other subsections of the ordinance which forbid public fondling of the genitals, masturbation, and sexual intercourse.
If the convictions of these students are allowed to stand, these young women will carry with them throughout their lives a record of conviction for lewd conduct, yet, everyone concerned concedes that, but for the arbitrary definition of that crime which seems to have been adopted by the City of Seattle, the appellants neither acted nor intended to act in a "lewd" manner as that term is used in reference to the other acts specified. Such a criminal record, and the implication of a disposition to commit acts of extreme vulgarity which necessarily accompanies it, may do these appellants incalculable harm in future years.
The majority's use of the cases of United Interchange, Inc. v. Spellacy, 144 Conn. 647, 136 A.2d 801 (1957) and Central Television Serv., Inc. v. Isaacs, 27 Ill. 2d 420, 189 N.E.2d 333 (1963), to support its position is particularly inappropriate. It suggests these cases support the proposition that courts may strike down legislative definitions which result in the imposition of burdens which could not have been imposed by the legislative body had the activities in question been correctly defined. The conduct of appellants in this case could have been prohibited if correctly categorized and the Central Television case is directly in support of that proposition. In Central Television, the legislature had defined the occupation of "retailer" to include television servicemen. A tax was levied upon all persons engaging in the occupation of "retailer." Television servicemen challenged the law classifying them as persons engaged *612in the occupation of retailer. Everyone conceded that television servicemen could be subjected to an occupational tax, but the servicemen contended that because they were not retailers they could not be subjected to that occupational tax. As the court stated, "The State contends plaintiffs are engaged in a taxable occupation — and plaintiffs concede their occupation to be taxable — but not under an act taxing the business of engaging in retail sales." Central Television Serv., Inc. v. Isaacs, supra at 427.
The court held that the television servicemen could not be taxed under the "Retailers' Occupation Tax" because the definition of "retailer" was arbitrary and capricious in its inclusion of the servicemen. The court also stated that it is impermissible for the legislature to attempt to convert an activity into something it is not by adopting a definition which is unreasonable. Just as the occupation of television serviceman could be taxed in that case in an amount identical to that applied to retailers, women exposing their breasts in public may be convicted equally if that act is properly defined. However, television servicemen under the Central Television case could not be taxed as retailers because the definition including servicemen within that classification was found to be arbitrary and unreasonable. Similarly, women exposing their breasts in public cannot be convicted of lewd conduct because the definition including exposure of breasts within the classification of lewd conduct is an arbitrary definition and an unreasonable classification. The case cited by the majority is in fact direct support for the position I take. Similarly, in the United Interchange case the court indicates some regulation of the activity forbidden could have been undertaken and that the primary vice was the method of definition rather than the attempt to regulate. That case as well supports the position of the dissent, not the majority.
The majority's use of People v. Gilbert, 72 Misc. 2d 75, 338 N.Y.S.2d 457 (N.Y. City Crim. Ct. 1972) and People v. Gilbert, 72 Misc. 2d 795, 339 N.Y.S.2d 743 (N.Y. City Crim. Ct. 1973), is particularly inappropriate. In the second case, *613the defendant was convicted of the offense of "exposure of a female", a separate crime not in any way a part of the statute on lewdness. The court held that exposure of a female is a lesser included offense of public lewdness. It so held because to prove exposure of a female the state had to prove every element of public lewdness except the central and fundamental requirement of the lewdness statute, which was that the conduct must be lewd. The defendant had been acquitted of public lewdness in the first case because the prosecution had failed to prove the defendant's exposure had been lewd.
At least two courts have held that mere public nudity, without more, cannot provide the basis for a lewd conduct conviction. In re Smith, 7 Cal. 3d 362, 497 P.2d 807, 102 Cal. Rptr. 335 (1972), expressly holds that a defendant who simply sunbathed in the nude, in the absence of additional conduct intentionally directing attention to his genitals for sexual purposes, did not lewdly expose himself. Similarly, it was held in McKinley v. State, 33 Okla. Crim. 434, 436, 244 P. 208 (1926), that an elderly man who wandered about his home naked, in full view of his neighbors, was not guilty of lewdly exposing his person, the court holding that lewd exposure "imports more than a negligent disregard of the decent proprieties and consideration due to others." While in both these instances the defendants could constitutionally have been said to have violated a more narrowly drawn ordinance, each was held to be not guilty of lewd conduct. I would apply similar principles here.
The ordinance at issue declares any person to be guilty of "lewd conduct" who "intentionally performs any lewd act in a public place" and defines "lewd act" as including, among other things, "an exposure of one's genitals or female breasts ..." Both the legal and lay definitions of "lewd conduct" consistently require more than the exposure of the body. This court has recently held the word "lewd" is interchangeable with "obscene" and noted that the dictionary definition of the term includes such other terms as "lascivious", "dissolute", or "salacious", Seattle v. *614Marshall, 83 Wn.2d 665, 521 P.2d 693 (1974). Each of these terms is intended, given its ordinary meaning, to describe conduct calculated to arouse sexual desire or excite prurient interests. Courts of other jurisdictions have adopted similar definitions, the one most frequently set forth being that the term "lewd" means "given to unlawful indulgence of lust, eager for sexual indulgence ..." State v. Jones, 2 Conn. Cir. Ct. 698, 700, 205 A.2d 507 (1964); Martin v. State, 534 P.2d 685 (Okla. Crim. App. 1975); Chesebrough v. State, 255 So. 2d 675 (Fla. 1971). See generally 25 Words and Phrases, "Lewd" (1961). The uncontroverted facts of this case, which are set forth at length in the majority and dissenting opinions, clearly establish that the appellants are not guilty of lewd conduct under any of these definitions. It is equally clear that their actions were not as serious as those set forth by other subsections of the ordinance such as fondling of the genitals, masturbation or public acts of sexual intercourse.
As the majority recognizes, courts are required to read a statute in the '"animating context of well-defined usage'". State v. Dixon, 78 Wn.2d 796, 805, 479 P.2d 931 (1971). Criminal statutes must be narrowly construed in favor of the defendant. State v. Bell, 83 Wn.2d 383, 518 P.2d 696 (1974). Further, where the overall meaning of a criminal statute indicates a particular association of offenses, the act should be construed against the inclusion of an offense outside the scope of the overall meaning of the act. State v. Chase, 50 Del. 383, 131 A.2d 178 (1957).
Given these definitions and rules of statutory construction I conclude it was the intent of the city council, in enacting this ordinance, to prohibit the exposure of the female breasts only when such an act was done in a lewd manner, that is, in a manner intended to excite a sexual response in the beholder or which naturally would appeal to the viewer's prurient interests. The conduct of the appellants is therefore not prohibited by the ordinance under which they were charged.
*615The majority asserts that cases such as In re Smith, supra, and McKinley v. State, supra, are distinguishable in that they involve statutes utilizing the word "lewd" without further definition, while the ordinance here at issue purportedly makes simple public nudity lewd in and of itself. The opinioh relies, in making this distinction, upon a passage from Sands' treatise on statutory construction which states a legislative definition is binding upon the courts. The majority, however, fails to take note of the sentence immediately following the quoted passage upon which it relies. That sentence states:
If, however, the definitions are arbitrary and result in unreasonable classifications or are uncertain, then the court is not bound by the definition.
1A C. Sands, Statutes and Statutory Construction § 20.08 (4th ed. 1972). It is this principle of construction which is applicable here. If the "exposure of the female breasts" provision is not read as requiring that the exposure take place in a lewd manner, it is both an arbitrary definition and an unreasonable classification in light of the other types of conduct enumerated in the ordinance and need not be considered conclusive by this court.
If .read literally, the ordinance clearly prohibits many types of conduct which cannot logically be said to have been within the City's interest to prohibit. See majority opinion footnote 5. Reading the statute as requiring a lewd exposure eliminates all of these difficulties.
I agree with the majority's assertion that the City has the power to regulate the type of conduct engaged in by these defendants. However, it must do so in the context of an ordinance which is both constitutional and places the crime in a logical classification. The power of the City to attach any label it wishes to conduct which it has the power to regulate must be exercised within the bounds of proper classification. I dissent.
Brachtenbach and Dolliver, JJ., concur with Utter, J.