By Cullen Seltzer, a Richmond attorney and guest writer

The views expressed in this article belong to the author and do not necessarily reflect those of the ACLU of Virginia.

Published reports are that Michelle Renay Sutherland came to Virginia to protest in support of the commonwealth's adoption of the Equal Rights Amendment. Her protest began with a real-life dramatization of the seal of Virginia. It ended with her arrest for criminal indecent exposure. She's almost certainly innocent.

Virginia law describes the great seal of the Commonwealth as depicting "Virtus, the genius of the Commonwealth, dressed as an Amazon, resting on a spear in her right hand, point downward, touching the earth." In her real-life reenactment, Sutherland stands as a pretty convincing Virtus, adorned and in attitude, more or less like Virtus on the Commonwealth's seal. It isn't clear whether Virtus, in the seal, represents "peace" or "liberty." Either way, the irony of what happened to Sutherland is inescapable.

While demonstrating with one bare breast, as Virtus in the Virginia seal is conventionally depicted, Sutherland was arrested by Capitol Police. They charged her with violating Virginia's criminal statute prohibiting indecent exposure. That charge is likely to be dismissed.

The Commonwealth of Virginia can only punish Sutherland for her display if it first concludes that its own Great Seal is itself obscene. If I were a betting man, I'd bet against that outcome.

Virginia's indecent exposure statute provides that "[e]very 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 [an offense punishable by up to a year in jail and/or a $2,500 fine]."

Sutherland exposed her "person" or "private parts," and she did so in a public place. However, none of that matters for purposes of proving Sutherland's guilt, unless the exposure was "obscene."

Former U.S. Supreme Court Justice Potter Stewart famously quipped that he'd know obscenity when he saw it. The U.S. Supreme Court first set out the modern test for obscenity in 1973 in Miller v. California. The Court set "basic guidelines" for whether speech amounts to obscenity: Does the speech, applying contemporary community standards, appeal to the prurient interest (showing an excessive interest in sex, nudity and obscene or pornographic matters); is sexual conduct described in a patently offensive way; and is the speech, taken as a whole, lacking serious literary, artistic, political, or scientific values?

Virginia's criminal law also defines obscenity and substantially, but not completely, incorporates the Miller Court's definition. Obscenity in Virginia is "that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, [or] sexual excitement […] and which goes substantially beyond customary limits of candor in description or representation of such items."

Today's conventions may well question whether any interest in nudity or sex, outside of pedophilia or bestiality, is fairly described as "shameful or morbid." In the same vein, prurience – an "excessive interest" in sex – is no easier to define today than it was almost 50 years ago.

Whatever obscenity meant in Miller, or now means in the Virginia Code, it doesn't describe at all what Sutherland was doing. Her bared breast wasn't illustrative of sexual interest, and certainly not a shameful or morbid sexual interest. Her breast was part of a literal, true-to-life depiction of the Great Seal of the Commonwealth of Virginia. Like an "Amazon," she was displaying Virtus, a symbol of peace or liberty, triumphing over her fellow re-enactor, a symbol of tyranny.

It's also true that Virginia law is silent on what's included, for purposes of the indecent exposure statute, in "private parts." In at least one part of the code, "intimate parts" is defined to include "the genitalia, anus, groin, breast, or buttocks of any person." 

You won't be surprised to learn that on any given warm, sunny day, the flat rocks in the James River here in Richmond where Sutherland was arrested are littered with shirtless men. Uniformly, they get away with this flagrant display of their bare breasts without even a warning against indecent exposure. 

In light of that longstanding practice, Sutherland's arrest looks a lot like either punishment for her politics or punishment for her female-owned nipple. 

The Commonwealth of Virginia can only punish Sutherland for her display if it first concludes that its own Great Seal is itself obscene. If I were a betting man, I'd bet against that outcome.

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