(dissenting).
I respectfully dissent.
Study of the record in this case, the statute involved, our prior interpretation and the decisions of other appellate courts dealing with obscenity and indecency, all convince me that an essential element of the crime charged is missing in this case. The case involves basic rights of the public at large and of the individuals involved. Therefore the reasons for the dissent should be given.
*443I.All crimes in this State are statutory. The common law may be referred to for purposes of definition but common law crimes are not recognized. Estes v. Carter, (1860) 10 Iowa 400; State v. Lamb, (1929) 209 Iowa 132, 227 N.W. 830; State v. Wallace, (1966) 259 Iowa 765, 145 N. W.2d 615.
As to construction of criminal statutes, Knott v. Rawlings, 250 Iowa 892, 895; 896, 96 N.W.2d 900, 901, 73 A.L.R.2d 868 says:
“ ‘Words and phrases shall be construed according to the context and the approved usage of the language; * * Section 4.1(2), 1958 Code. It is settled rule in this state that criminal statutes are to be strictly construed, and doubts, if any, are to be resolved in favor of the accused. Such statutes may not be extended by implication to include an offense not clearly within the fair scope of the language used. (Citations). In Lever Brothers Co. v. Erbe, 249 Iowa 454, 468, 87 N.W.2d 469, 478, we said: ‘ “It is the fundamental rule * * * that no one may be required * * * to speculate as to the meaning of penal statutes.” ’ ”
In State v. Leonard, 255 Iowa 1365, 1369, 124 N.W.2d 429, 432, we noted Chief Justice Marshall’s words on the subject: “United States v. Wiltberger, 5 Wheat. (U.S.) 76, 5 L.Ed. 37, in which he said: ‘ * * * To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of equal atrocity or of kindred character with those which are enumerated.’ ” (Emphasis supplied.)
We are now in the very situation against which Chief Justice Marshall warned so long ago; i. e., because we disapprove the actions of these defendants we are tempted to rationalize to place their actions within a statute that was never meant or designed for regulation of this type of conduct.
II. We should interpret the statutory language involved in conjunction with the entire statute. The statute in its entirety reads:
“Lewdness-indecent exposure. If any man and woman not being married to each other, lewdly and viciously associate and cohabit together, or if any man or woman, married or unmarried, is guilty of open and gross lewdness, and designedly makes an open and indecent or obscene exposure of his or her person, or of the person of another, every such person shall be imprisoned in the county jail not exceeding six months, or be fined not exceeding two hundred dollars.” (Emphasis supplied.) Section 725.1, Code, 1966.
The legislature was obviously dealing with a broad range of lewdness, obscenity and indecency when it enacted the statute in its present form. To me at least, the statute very clearly requires both a lewd design or intent and an open exposure. Reference to semantic experts cannot change this plain intent. The conclusion that the statute makes illegal “the act of disrobing, plus the intent to do it in a place where social norms would be knowingly violated” without lewd design is not borne out by any reasonable interpretation of the legislation. Further, if the statute did so state, I submit it would be unconstitutionally vague.
III. Interpretation of our statute to require both a lewd intent and an open exposure is also required if comparison is made to other similar statutes. This is strongly argued by defendants. They contend the statutes fall into two broad classifications; (1) those that proscribe public exposure in and of itself, regardless of indecent intent or effect; and (2) those that require that the public exposure be coupled with an indecent or obscene intent.
The State denies the validity of the distinction. We think an examination of var*444ious statutes shows the distinction does exist. The operative words of Iowa’s statute are: “* * * or if any man or woman, married or unmarried, is guilty of open and gross lewdness, and designedly makes an open and indecent or obscene exposure of his or her person, or of the person of another, * * (Emphasis supplied.) Section 725.1, Code, 1966.
By contrast the operative words of the Michigan statute read: “ ‘ * * * and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior, or who shall designedly make an open or indecent or obscene exposure of his or her person, or the person of another, shall be guilty of a misdemeanor, * * (Emphasis added.) Section 335 Penal Code of Michigan, Act. No. 328 of the Public Acts of 1931.”
A comparison of the words used in the two statutes indicates the difference. The Michigan statute, because of the use of the word “or”, may well be interpreted to mean an “open” exposure violates the statute whether there is an indecent or obscene intent or not. The Michigan court so held in People v. Ring, (1934) 267 Mich. 657, 255 N.W. 373, 93 A.L.R. 993, but now seems to be divided on the subject. People v. Hildabridle, (1958) 353 Mich. 562, 92 N.W.2d 6; Annotation, 94 A.L.R.2d 1353, 1390.
The effect of such words as “designedly made an open and indecent or obscene exposure” is probably most succinctly stated in Ex Parte Correa, 36 Cal.App. 512, (1918) 172 P. 615, 616: “‘Every person who willfully and lewdly, either: One. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; * * * is guilty of a misdemeanor.’ ” (Emphasis supplied.)
The court quite briefly noted: “It is manifest, upon an inspection of the complaint, that it failed to charge the offense described in the statute. It was not alleged that the acts described were done ‘lewdly,’ nor were any words of equivalent meaning used in the complaint. An essential element of the crime being thus omitted, the complaint did not state a public offense.”
A strict construction of the statute (to which defendants are entitled under our rules) makes indecent or obscene intent an essential element of indecent exposure. Defendants do not say the State can not prohibit public nudity per se. They argue the State has not done so and they cannot be convicted of a crime that doesn’t exist.
But now the court eliminates lewd intent as an element of this crime. We have said criminal intent should ordinarily not be eliminated as an essential element of a crime. State v. Schultz, 242 Iowa 1328, 1331, 1332, 1334, 50 N.W.2d 9,11-12:
“Generally, a criminal intent is essential before it can be said that an offense has been committed. * * *
“But we think it should be, and is, the law that the legislative intent to eliminate guilty knowledge should be clearly apparent. * * *
“ * * * We are not disposed to extend further the doctrine of guilt without intent or knowledge. Defendant’s motion for directed verdict should have been sustained.” State v. Schultz, supra, was quoted with approval in State v. Drummer, (1962) 254 Iowa 324, 117 N.W.2d 505 and State v. Ramos, (1967) 260 Iowa 590, 149 N.W.2d 862. I submit the present interpretation of the statute violates our normal rules of construction.
IV. The encyclopedias and the statutes uniformly treat indecent exposure as a form of lewdness, 53 C.J.S. Lewdness § 2(c) (3), p. 9; 50 Am.Jur.2d, Lewdness, Indecency and Obscenity, § 17, p. 472, and so have the cases. See State v. Sousa, (1964) 2 Conn.Cir. 452, 201 A.2d 664, for a good short review of the law of indecent exposure.
*445Study of the cases indicates most indecent exposure prosecutions, whether under common law or statutory authority, may be classified under four broad headings:
1. Those concerned with what might be called the individual sex deviant; i. e., the person deliberately exposes himself usually to one or members of the opposite sex. State v. Stice, 88 Iowa 27, 55 N.W. 17.
2. Those concerned with acts of exposure which were part of other sexual activity. State v. Matje, Mo. (1954), 269 S.W.2d 128.
3. Those concerned with prosecution of various entertainment acts; i. e., burlesque, night club acts and the like. Usually, but not always, prosecuted under special statutes.
4. Those concerned with prosecution of nudist camps or colonies.
All of the first three types of cases have sexual connotations. The requirement of indecent intent is usually resolved from the type of exposure and the surrounding circumstances. With the lewdness concept present the reference to social norms can be rationalized.
The nudist camp cases pose an entirely different problem. In such cases defendants argue (as here) that nudity is not per se indecent, the statute requires a showing of something more than mere nakedness and if the act was innocent of sexual overtones, it is not proscribed. The response of the courts has not been uniform.
In Michigan the court held nudists who, on their own property and out of view of the general public, went without clothing in the presence of persons whose sense of decency and propriety was not offended, were nevertheless guilty of the offense of indecent exposure. People v. Ring, (1934) 267 Mich. 657, 255 N.W. 373, 93 A.L.R. 993. Twenty-four years later the Michigan Supreme Court reexamined the problem but split 3 to 3 on the decision. People v. Hildabridle, (1958) 353 Mich. 562, 92 N.W.2d 6. The Iowa Attorney General, Norman A. Erbe, relied upon and followed People v. Ring, supra, in an opinion dated July 30, 1957. He concluded nudists would be subject to prosecution in Iowa.
New York’s struggle with the problem took a different tack. People v. Burke (1935) 267 N.Y. 571, 196 N.E. 585, reversed a conviction of nudists who were prosecuted for holding nude exercises and swimming sessions in a private gymnasium and swimming pool. The legislature promptly enacted a new statute but this legislation has been construed to proscribe nudism for financial gain. Thus nudism, per se, was held not to be illegal in New York. Excelsior Pictures Corp. v. Regents of University of State of New York (1957) 3 N.Y.2d 237, 165 N.Y.S.2d 42, 45, 144 N.E.2d 31, 34; Cf. Annotation, 94 A. L.R.2d at 1380, 1381, Desmond, J., states for the court:
“* * * For more than a century the New York courts have held that exposure of the body to the view of others is not criminal if there be no lewd intent (Miller v. People, 1849, 5 Barb. 203; Cf. People ex rel. Lee v. Bixby, 4 Hun 636, opinion in 67 Barb. 221). Even the strictest moralists tell us that ‘an obscene nude is a nude that allures’ (Vermeesch, Theologiae Moralis, 1936, p. 94).”
Both Ohio and Texas have held nudism without more is illegal in those states. State ex rel. Church v. Brown (1956) 165 Ohio St. 31, 59 Ohio Ops. 45, 133 N.E.2d 333; Campbell v. State (1960) 169 Tex. Cr.R. 515, 338 S.W.2d 255. Certiorari was denied by the United States Supreme Court in both cases.
The foregoing analysis is deemed necessary because our study reveals no cases where defendants claimed they were using nudity as a form of protest; i. e., their actions were not meant to be lewd, indecent *446or obscene and were not so interpreted by their audience. In this context, as in the case of the nudists, the question of whether the statute requires an indecent or obscene intent becomes acute.
As in the nudist colony cases, I would hold the statute requires something more than mere nudity which might offend the sense of propriety of persons not present. If the acts are shown to be inoffensive to those present, the conviction should not depend on the social or moral norms of those not present. This is an important point here.
The evidence shows no one was sufficiently offended to protest, or even stop talking. The meeting went right on. No one left the premises. No one complained to the police. As far as the record shows no community reaction took place. There is no basis for criminal condemnation of this action as it applies to the people present at the meeting. Yet the jury was told nudity in public violated the statute and no inquiry was allowed as to whether the action shocked the viewing public, or any member thereof. And no inquiry was allowed as to whether, under the circumstances, it shocked the jury sufficiently to find these defendants guilty of a crime. Thus the social and moral norms of the law enforcement officials and the court became the sole criteria.
This is clear both from the instructions and the jury’s question. The court’s Instruction No. 11 required the State to prove:
“1. That on or about the 5th day of February, 1969, the particular defendant under consideration did make an open and indecent or obscene exposure of his or her person.
“2. That said exposure, if such there ■was, was made designedly.”
Instruction No. 12 then tells the jury the exposure is indecent regardless of intent or effect as to obscenity if the exposure is made in public.1
The jury after deliberating some three and one-half hours asked the following question and received the following additional instruction:
“EXHIBIT F: ‘The last sentence in your instruction No. 12 seems to determine our decision. However, it is so absolute that exceptions to this rule have been observed, i. e. doctors and nurses are “others”, artists and sculptors are “others”. Our question is, “Is the instruction as to the ‘observation of others’ absolute or does the rule or reason admit exceptions ?” ’ ”
“ANSWER TO EXHIBIT F: By way of answer thereto you are informed that doctors, nurses, artists and sculptors would not be included in the word ‘others’ as it appears in the last sentence of Instruction No. 12. Persons in attendance at an open *447meeting would be included in the word ‘others’ as used in said instruction.”
When the court’s instruction and the jury’s question are thus reviewed the unfairness o'f the instruction in light of the present posture of this court becomes apparent.
Suppose the jury had been instructed that indecent exposure requires more than mere public nudity? Suppose ftether the jury was told they must find the defendants knew their “act violates recognized and accepted norms of social behavior”? Might not the jury have reached a contra result? Since no one was shocked I believe a different result would have been quite possible.
V. The jury’s question emphasizes the dilemma occasioned by the trial court’s instruction, the new rule announced here and the ready acceptance of judicially inspired exceptions. The jury properly construed the instruction to mean nakedness in public is criminal, without exception. They, in effect, asked, “Aren’t there any exceptions such as doctors, nurses, artists and sculptors?” The court, in effect, answered, “Yes, but persons at an open meeting are not excluded.”
The jury’s question and the trial court’s answer both indicate how acute the problem becomes if the statute as written is construed to include nudity alone as an offense.
If “others” does not include doctors, nurses, artists and sculptors, how far are the exceptions to be extended by judicial construction ? Are students, masseurs, physical therapists and the like, included?
Is a differentiation of sexes necessary? Especially in light of current recognition of homosexuality in our society? If not, how do we handle the common bathhouse or locker room problem at public swimming pools, gymnasiums, Y.M.C.A.’s and the like?
All such questions are presumably answered by the court’s new formula. If the action violates the “ordinary rules of social behavior” it is proscribed, otherwise not. In this case had the men defendants stripped to the waist they would presumably escape condemnation because hardly anyone is shocked by a man who is bare from the waist up. Of course the women defendants would be guilty because topless dress “violates a firmly accepted norm”.
The trouble here is that the jury did not have the benefit of the new rule in this case. For this reason, if no other, a retrial should be ordered.
The jury’s question illustrates the wisdom of the rule requiring us to limit ourselves to what the statute says. We should not interpret the statute as all inclusive and then grant our own judicially inspired exceptions as need arises or as suits our view of socially acceptable norms. This is the prerogative of the legislature within constitutional limits.
VI. This elimination of guilty knowledge or guilty intent as an essential element of the crime of indecent exposure opens our statute, as now interpreted, to serious constitutional challenge not considered by the majority. The majority’s discussion of the constitutional issues involved entirely overlooks what seems to me to be the most important case on the subject. That is Smith v. California (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, which is concerned with sale of obscene books. The Los Angeles City ordinance prohibiting sale of obscene books made no reference to guilty knowledge or intent. California interpreted the ordinance so as to dispense with proof of guilty knowledge or intent. So interpreted the ordinance was held to be unconstitutional. The United States Supreme Court said:
“California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. *448‘The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 [1147], Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter — though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations. * * *.” The court then went on to declare the ordinance unconstitutional on the sole ground that guilty knowledge or guilty intent was eliminated as an essential element of the crime.
The majority’s careful distinction in this case between “pure speech” and conduct “which is akin to pure speech” recognizes even regulation of nonspeech conduct may be an impermissible incursion on freedom of expression unless there is a sufficient governmental interest in regulating the citizen’s act. Then “that interest can justify the possible minor encroachment on the First Amendment”.
If we interpret the instant statute to require a lewd intent, or at least a lewd reaction on the part of the viewing public, our statute might stand constitutional muster. But we merely say there need only be shown a public nudity without either lewd intent or lewd result, it is hard to find the permissible governmental interest Rather we are too apt to be protecting out own notions of propriety, decency and morality. As stated in Smith v. California, supra: “ * * * And this Court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. Winters v. People of State of New York, 333 U.S. 507, 509-510, 517-518, 68 S.Ct. 665, 667, 671, 92 L.Ed. 840 [846, 847, 850, 851], * * (loc. cit. 80 S.Ct. at 217— 218, 4 L.Ed.2d at page 210.)
Despite the majority assertion to the contrary defendants were protesting what, to them, was an important issue.' Here the free expression of ideas is in fact being inhibited by a vague reference to violation of “the accepted norms of social behavior”. Our democracy has enough strength and vitality to withstand such shocking conduct without resort to criminal sanction.
VII. Additional reasons might be given for reversal here. They all sum up to one conclusion. This is not an “indecent exposure” case and never was. Therefore the case should be reversed and ordered dismissed.
. “Instruction No. 12. The words ‘open and indecent or obscene exposure of his or her person’ included in proposition number 1 of Instruction No. 11 mean an exhibition of those parts of the human body which instinctive modesty, human decency, or natural self respect require shall be customarily kept covered in the presence or view of others. They contemplate an act done in such a place or under such circumstances that the exhibition, if any, is liable to be seen by others, and is presumably made for that purpose, or with reckless disregard of the decencies of life. A person, if so inclined, may dress himself or herself in nothing more substantial than the innocence of Eden provided he or she does not ‘expose’ himself or herself in that condition. An exposure becomes ‘open and indecent or obscene’ only when a person indulges in such a, practice at a time where as a reasonable person, he or she knows, or ought to know, that his or her act is open to the observation of others." (Emphasis supplied).