Coeur d'Alene's Pride Performances Violated Idaho Law

Coeur d’Alene’s Pride in the Park festival violated two Idaho laws. Will the CDA district attorney prosecute? (PG 13 Edition)

Sexualized gender bending activities are features of LGBTQ+ Pride Fests across Idaho. Youth are being invited on stage to dance with men dressed as sexualized women at Pride events. The youth are often touched by these men and encouraged to participate. The men dressed like women seek approval from the youth.

Coeur d’Alene Sheriff Bob Norris has pledged to support any investigation into whether a man dressed as a sexualized woman exposed his penis to the crowd at the event. A man exposing his penis to anyone, much less to minors, has committed the crime of indecent exposure under Idaho Code. Indecent exposure happens when a person willfully and lewdly exposes himself in a public place in the presence of others. A flash of the penis is indecent exposure, as long as it is willful.

The circumstances reveal willful intent. The act of dancing without wearing underwear and then spreading one’s leg would make the act willful. Wardrobe is, in this case, self-consciously selected. Dances are planned. Performers know that there is an audience. Any wardrobe malfunction should be prevented by an abundance of caution. A man dressed as a sexualized woman who flashes his genitals in a public performance is guilty of indecent exposure. Period.

In fact, anyone who assists someone who flashes genitals to another or even counsels another person to flash genitals is equally guilty of indecent exposure under Idaho Code. In this sense, anyone who knew about or encouraged such a performance beforehand is guilty of the same indecent exposure. A gutsy prosecutor should also press charges against those who abetted the indecent exposure—namely the North Idaho Pride Alliance, the organizers of the Pride in the Park.

Idaho’s laws do more than just prevent people from exposing themselves to others. The whole drag episode—men dressing up as sexualized women, prancing around on stage in front of young children, and inviting children to join them up on stage—is most unseemly and indecent and, most crucially, obscene.

The sexualized dance violates Idaho’s obscenity statute (Code 18-1513-1517), which makes spreading obscenity to youth illegal. Idaho's obscenity statutes were written in 1972, just as the Supreme Court was announcing the current standards for regulating obscenity. Obscenity always has been illegal under the U.S. Constitution, and 1972 Idaho's legislature was determined to keep it that way even though the Supreme Court has offered an expansive definition of First Amendment freedom. The legislature was, at that time, adjusting old laws to new circumstances to face new threats.

The legislature set a policy or purpose (18-1513) to “restrain the distribution, promotion, or dissemination of obscene material. . .or the performance of obscene performances” because such a performance would be “a basic factor in impairing the ethical and moral development of our youth.”

In the next section of the law, the legislature defined the terms (18-1815), including “performance” and “material.” According to the statute, material is anything harmful “derived through the medium of reading, observation or sound.” Performance includes any “dance or other exhibition performed before an audience.” The Pride in the Park show is both a material and a performance.

Is it harmful? According to the statute, "harmful to minors" is defined as something that depicts sexual conduct or sexual excitement in a "patently offensive" way that contradicts “prevailing standards in the adult community” and that appeals to “the prurient interest of minors” as a normal person would judge it. There is not a national standard under this Supreme Court norm. Local communities can determine "contemporary community standards." Then the statute (18-1815) sets forth a penalty for obscene shows and other presentations of up to a year in county jail and a fine not to exceed $1,000.

A plain reading of the text shows that the CDA Pride performance was obscene. The question at least should be answered by a jury in CDA. Juries are constituted of normal people who make judgments on behalf of the community. Juries define what contemporary or “prevailing standards” are. Juries determine when something is “patently offensive.” Juries judge "contemporary community standards." Let them.

We will have more to say about this in the coming days. Many conservatives are making bad arguments about how Pride in the Park performances should be prosecuted. We will try to show why they are wrong tomorrow. For now, let it suffice to say that indecent exposure and public obscenity are crimes. Public prosecutors, either at the local or state level, should bring charges to defend the community.

(The original article held that the sheriff was investigating; he has only pledged to help an investigation if called upon. Primary investigatory power lies with the CDA Police Chief. We regret the error.)