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Iowa Supreme Court Announces Indecent Exposure Statute Does Not Apply to Still Images of Genitals

by Dale Chappell

Interpreting the word ‘exposes’ in Iowa’s indecent exposure statute, the Supreme Court of Iowa held on February 2, 2018 that texting an image of one’s genitals to another does not constitute “indecent exposure” and that counsel was ineffective for failing to challenge the sufficiency of the evidence.

After Jose Lopez texted an image of his erect penis with the message “Me in my glory” to a woman he had been pursuing, he was charged with indecent exposure, in violation of Iowa Code §709.9 and stalking—violation of protective order or injunction under §§ 708.11(2) and 708.11(3)(b)(1). A jury found him guilty of both counts. He was sentenced up to five years in prison for the stalking count and a determinate term of one year in jail and a special sentence of ten years for the indecent exposure conviction under § 903B.2. The court ordered all sentences to run consecutively. Lopez appealed, and the Iowa Supreme Court agreed to hear his case.

Before the Supreme Court, Lopez asserted, among other claims, that his trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the indecent exposure charge. He argued that the word ‘exposes’ in the statute means exposing in-person one’s genitals. The State, however, argued that there is no difference between exposing one’s genitals in an image or in-person.

Because Lopez had failed to preserve the issue for appeal, though, the Court’s review of his claim turned on whether Lopez’s trial counsel was ineffective. This is because claims of ineffective assistance of counsel implicate the constitutional right to counsel, which is reviewed “de novo,” or completely anew, regardless of whether the issue was preserved for appeal. State v. McNeal, 867 N.W.2d 911 (Iowa 2015). The Court determined that Lopez’s lawyer was ineffective because he acted “below the standard demanded of a reasonably competent attorney” and because counsel’s errors affected the outcome, i.e., there would have been a different outcome without the errors.

Iowa defines indecent exposure under section 709.9 as having occurred when a “person who exposes the person’s genitals or pubes to another,” or performs as sex act “in the presence of or view of” another. The Court explained that the word ‘exposes’ is not defined in the statute. Similarly, the Court noted that “nothing in the dictionary definition or our prior caselaw explicitly addresses whether” exposes, for purposes of the statute, is limited to in-person scenarios or also includes electronic transmission of images. Since reasonable minds could differ as to the statutory meaning of the word ‘exposes,’ the Court concluded it is ambiguous.  

When a statue is ambiguous, it must be interpreted in favor of the defendant, the Court said. A court must “consider the overall structure and context of the statute, not just specific words or phrases in a vacuum.” Taken as a whole, § 709.9 criminalizes both the exposure of one’s genitals and the commission of a sex act “in the presence of or view of a third person.”

Further, the Legislature has criminalized in other statutes the sending of obscene images to another person. For example, invasion of privacy under § 709.21 expressly criminalizes transmission of inappropriate images, and another statute enacted at the same time as § 709.9 (now removed by amendment) did criminalize “the display of” images in certain establishments. The Court pointed out that all the offenses under Chapter 709, except invasion of privacy, require a person’s physical presence.

Interpreting § 709.9 in Lopez’s favor, then, the Iowa Supreme Court held that “section 709.9 does not criminalize one’s transmission of a still image of his or her genitals or pubes via text message.” Because Lopez’s conviction rested solely on the text message of his genitals, his conviction for indecent exposure was not support by the evidence. Had Lopez’s lawyer moved for acquittal, the district court would have sustained such a motion, had it been filed, the Court concluded. Lopez was therefore prejudiced by his lawyer’s failure to challenge the sufficiency of the evidence, the Court held.

Accordingly, the Court reversed the judgment for indecent exposure and remanded the case for dismissal of that charge. See: State v. Lopez, 907 N.W.2d 112 (Iowa 2018). 

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State v. Lopez



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