Last week on Interstate 4 near Orlando, two drivers allowed their road rage to ripen into a curious set of events. One car cut off the other and the latter responded in kind; and so the cycle continued until one of the passengers decided to end the conflict by the 'seat of his pants' as it were. Dropping his trousers, 21 year old John Taylor squeezed his bare rear-end out of the front-seat passenger-side window for all the world - but more specifically his foes in the other car - to enjoy. As any fifth grader can attest, this is commonly referred to as a "moon".
Some time after the cars had parted ways, the passengers of the second car - battered from their mooning - explained the situation to a local deputy. John was found, hauled into jail and charged with indecent exposure. Incidentally, he was held without bail for violating some inconvenient probation sentence he already had.
At this point, it is easy to assume that John received some fine or spent a night or two in jail, the whole thing being disfavored by his previous transgressions. But that is far from the case. In fact, the indecent exposure charge was filed as a "lewd and lascivicious act in the presence of a child younger than 16" which carries with it the usual weight of all sexual, second-degree felonies in the state of Florida - 15 years in prison and a fresh spot on the sex offenders' registry. It would seem that John's tush is in hot water.
It is good that states carry harsher punishments for sexual acts that involve children, but let us consider the merit of this case. Was it possible, traveling down the highway at 60 miles per hour, that our mooner could make out the passengers of the other car (a black Mercedes), appreciate that one was younger than 16 and want to involve that child specifically? In order for the mooning to be effective, John must have been turned around, looking away from the other vehicle. It is likely that his aim was for the driver, who obviously could not have been a child under the age of 16, unless different laws were broken. Ergo, no felony is applicable.
But what of the mooning itself? Should any charge of indecent exposure apply?
According to section 800.3 of the Florida Statute, in order for mooning to constitute even a misdemeanor charge of indecent exposure, one must "expose or exhibit one's sexual organs in public". Are the buttocks "one's sexual organs"? The state of Maryland didn't think so. The judge in that case reversed an earlier ruling and said "If exposure of half of the buttock constituted indecent exposure, any woman wearing a thong at the beach at Ocean City would be guilty". Court cases have routinely expressed this same ruling, limiting indecent exposure to the genitalia. In 1986, the DC Court of Appeals was one of the first to make this decision.
In the 60s, mooning at rock concerts and during parades was commonplace. Teenage "crescent clubs" would routinely traffic events where they could get positioned for a good bare. For awhile, pedestrians seemed willing to write off these flashes as adolescent hijinks. Several years ago, the Movement Against the Monarchy organized a "mass mooning" in front of Buckingham Palace. Again, pedestrians seemed to find the event rather harmless. And there's the infamous Battle of Crecy in the 14th century where a few hundred Norman soldiers flashed the British army. Mel Gibson took a crack at this in his movie Braveheart, released in 1995.
History and interpretations aside, judges are free to ignore precedents, and occasionally it is good that they do. Assuming the courts want mooning to fit 800.3, what then is the punishment? "...Violation of this section is a misdemeanor of the first degree..." which we later learn is no more than one year in prison.
A year in jail for the victimless crime of mooning is a bit steep. Fifteen years in jail is unthinkably cruel, to say nothing of the compulsory bonus - a lifetime membership on the sex offenders' registry. In Florida, it takes 30 years of good, post-incarceration behavior to get off the list, and that's only if one's petition is approved (which it need not be). The government's customers - upstanding taxpayers - enjoy their list.
It is easy to imagine other punishments more fitting for the Orlando mooner. The young man could have been given community service at the local proctology office; or even forced to wash the windows of a dozen school buses. Alas, courtrooms have lost their sense of humor along with their understanding of what punishment means in a free society.
Classically, there are three reason that extreme punishment develops.
The first is because society cannot curb a rising criminal trend; thus, frustrated courtrooms turn into lynch mobs. This reason seems hardly relevant here. Highway moonings are not on the rise.
Another reason is that the adjudicator is incompetent, which usually results in a quick replacement. This situation is hard to find as most societies do not elect young judges.
The last reason - and most common reason in the US - is that the sentencing guidelines are non-existent or loosely defined, leaving the judge to rely on his own feelings on a case-by-case basis. In January of 2005, Judge Edward Cashman of Vermont imposed a 60-day sentence on a man who admitted to raping a little girl repeatedly for four years. Cashman commented that he "no longer believed in punishment and is more concerned about rehabilitation". Here we see extreme punishment again, only this time extremely lax. Had the Vermont legislature enacted well-defined laws on child molestation - like Jessica's Law - Cashman would not have had so much latitude in his sentencing.
The moral of this story is that well-defined laws lead to expected consequences. Expected consequences are necessary for discipline to have any benefit, and discipline is precisely what lewd young men are sorely in need of.
Because laws are open to interpretation, how well they are enforced speaks to their overall power of conviction. If laws are not enforced, they are thought to be loosely defined because the executive branch of government is reluctant to deal with them. If a policeman knows that the court wobbles on its interpretation of a particular law, he has less incentive to arrest those that are breaking it. Consider illegal immigration. Congress has refused to create a well-defined and properly-funded deportation process, so the cops have stopped arresting illegals. Lack of definition has persuaded the feds to look the other way.
Recently, my associate discussed speed limits and how no one obeys them because they are absurd. But are speed limits ignored because they are too low or because they are spottily enforced? Traffic cameras enforce speed limits much better than humans do. Cameras can not be bribed or coerced. Cameras do not have bad days, sleep on the job or feel sorry for sobbing female offenders. So they provide a clear example of consistent enforcement. A three year study by the British Department of Transport showed a consistent 7% reduction in speed when traffic cameras were used. A different independent four-year study commissioned by the DoT showed similar numbers. In the US, the ITRE released a study that showed consistent speed reductions from traffic cameras in every category they studied. In fact, aggressive drivers - those exceeding the limit by 10 mph or more - were reduced by 55%. Never mind a 20-45% drop in traffic accidents. Speed limits are the most well-defined laws of all - a simple bold number placed on a road sign in clear view - but they are ignored for lack of enforcement. Drivers will only care about speed limits if cops do.
It is not possible to create laws that cover every criminal inclination. In the end, society can only rely on courtroom interpretations so long as they can rely on the judges that make them. That has become increasingly difficult to do. But less trust is required if a few refinements can be made to the existing statutes. In this case, the indecent exposure statute only requires three additional words: "limited to genitalia".
Hopefully, our Orlando mooner will fare well through his upcoming court proceedings and soon be able to put the whole thing behind him.