Summary
The Colorado Supreme Court reviewed a challenge to Colorado's public indecency statute, specifically the provision criminalizing a "lewd fondling or caress" in public. The court held that the provision was not unconstitutionally overbroad because it did not burden a substantial amount of protected speech or expressive conduct, and was not vague as applied to Gary Graves's conduct.
Topics
Practice areas
Questions Presented
- Whether the public-indecency statute's prohibition on a 'lewd fondling or caress' of another person's body is unconstitutionally overbroad under the First Amendment.
- Whether the statute is unconstitutionally vague as applied to Graves's conduct.
- Whether a defendant whose conduct is clearly proscribed may challenge the statute as vague based on hypothetical applications to the conduct of others.
Holdings
- Section 18-7-801(1)(d), as construed by the court, is not unconstitutionally overbroad because it targets only overtly sexualized conduct in public and does not burden a substantial amount of constitutionally protected speech or expressive conduct.
- Section 18-7-801(1)(d) is not vague as applied to Graves because stroking another man's erect penis through the man's pants in a public theater is plainly lewd conduct and the statute provided fair warning.
- The term 'lewd' modifies both 'fondling' and 'caress,' and the phrase refers to overtly sexualized, lascivious conduct rather than ordinary public displays of affection.
Key quotations
“Because the provision does not burden a substantial amount of constitutionally protected speech or expressive conduct, the provision is not unconstitutionally overbroad.” (at 320-321)
“Moreover, because the defendant's conduct in this case meets any reasonable definition of "lewd fondling or caress," the statute is not vague as applied to his actions, and he cannot complain of the alleged vagueness of the law as applied to the hypothetical conduct of others.” (at 321)
“A statute satisfies due process requirements if its terms "are sufficiently clear to persons of ordinary intelligence to afford a practical guide for law-abiding behavior and are capable of application in an even-handed manner by those responsible for enforcing the law."” (at 324)
“In sum, we hold that section 18-7-301(1)(d) of the public indecency statute is not unconstitutionally overbroad.” (at 329)
Factual background
During an undercover operation at an adult movie theater, an Adams County deputy observed Gary Graves stroking another man's erect penis through the man's pants in view of other patrons. Graves was arrested and charged with public indecency, a class 1 petty offense. He challenged the statute as facially and as-applied unconstitutionally vague and overbroad.
Procedural history
Graves was charged in Adams County Court with public indecency under section 18-7-801(1)(d), C.R.S. (2015), based on alleged lewd fondling or caressing in a public place. The county court dismissed the charge as unconstitutionally vague without reaching the overbreadth claim. The Adams County District Court affirmed, concluding that the statute was both vague and overbroad. The Colorado Supreme Court granted the People's petition for a writ of certiorari and reversed.
Remand instructions
No remand was ordered or deemed necessary because the People did not seek reinstatement of the charges.