State v. Fly

Judge Walker

dissenting.

I would give a broader interpretation to the statute to include buttocks within the definition of “private parts.” In State v. Jones, 7 N.C. App. 166, 171 S.E.2d 468 (1970), this Court stated that “[t]he term ‘private parts’ appears to be generally acceptable legal parlance in referring to male or female genitalia.” Id. at 167, 171 S.E.2d 468-69. However, I find nothing which leads me to conclude that the definition of “private parts” means only one’s genitalia.

A recent case from Virginia is persuasive authority that buttocks should be considered “private parts.” Virginia’s indecent exposure *290statute provides in part: “Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place . . . shall be guilty of a Class 1 misdemeanor.” Va. Code § 18.2-387. Like this State, Virginia has not further defined “private parts.” Nevertheless, in Hart v. Virginia, 18 Va. App. 77, 441 S.E.2d 706 (1994), the Court of Appeals of Virginia held that the legislature intended to include buttocks in the category of private parts. The Court reasoned that while the term “private parts” is not defined within the purview of the indecent exposure statute, “other related phrases make clear the legislature’s intent to include the groin and buttocks within that category.” Id. at 79, 441 S.E.2d at 707. The Court was referring to two sections of the Virginia Code. One section which defines “intimate parts” to include “not only genitalia, but also the ‘anus, groin, breast or buttocks.’ ” The other section defines “nudity” as a “ ‘state of undress so as to expose the human . . . genitals, pubic area or buttocks. . . Id.

Like Virginia, our statutes do not specifically state which body parts are included in the term “private parts” under N.C. Gen. Stat. § 14-190.9. However, other criminal statutes within Article 26 (Offenses against Public Morality and Decency) and Article 26A (Adult Establishments) define related phrases which we draw from to establish that our legislature intended to include buttocks as a “private part” under N.C. Gen. Stat. § 14-190.9.

In N.C. Gen. Stat. § 14-190.13, Definitions for certain offenses concerning minors, “sexually explicit nudity” is defined in part, as follows:

The showing of:
a. Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast. . . .

Similarly, N.C. Gen. Stat. § 14-202.10 defines terms used in Article 26A, Adult Establishments. There, the term “specified anatomical areas” is defined in pertinent part as:

a. Less than opaquely covered: (i) human genitals, pubic region, (ii) buttock, or (iii) female breast below a point immediately above the top of the areola. . . .

Although the purposes of the aforementioned statutes are distinguishable from that of N.C. Gen. Stat. § 14-190.9, they all were *291enacted to prohibit offenses against morality and decency. As such, I would conclude that the term “private parts” was intended to encompass the buttocks.

Defendant’s actions were precisely the type of conduct the statute is designed to prohibit. The buttocks are a part of the human body which morality and decency require to be covered in the presence of others. Thus, our statute should be reasonably interpreted to include buttocks within the meaning of “private parts” and to protect citizens from the exposure experienced by the witness on this occasion. On this basis, I respectfully dissent.