Constitutional Law

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Lawyers are asking a judge to overturn Utah’s lewdness law and to toss charges against a Utah woman who appeared topless in front of her stepchildren.

On Tuesday, a lawyer for the American Civil Liberties Union of Utah asked Judge Kara Pettit to find that the Utah lewdness law unconstitutionally treats women differently than men.

The Salt Lake Tribune, the Associated Press, NPR and the Washington Post have coverage.

Lawyers for Tilli Buchanan of West Valley City point to a decision by the 10th U.S. Circuit Court of Appeals at Denver finding that the female topless ban in Fort Collins, Colorado, likely violates the equal protection clause.

Utah’s lewdness law makes it a crime to expose “the female breast below the top of the areola” in the presence of a child in a private place “under circumstances the person should know will likely cause affront or alarm,” according to NPR.

Lawyer Leah Farrell of the ACLU says the law requires women to do a “mental calculation” about whether going topless would cause alarm. But men can go shirtless without violating the law and without making that calculation. “That really sets up an unequal and unfair dichotomy,” Farrell told the Salt Lake Tribune.

Buchanan and prosecutors tell different stories about the situation that led to the charges. Buchanan previously told the Salt Lake Tribune that she and her husband had been installing insulation in their garage, and they stripped off their clothes when they walked into the house because they were sweaty and itchy. She had on no top when the stepchildren saw her.

Buchanan says she told the children that a woman’s chest isn’t inherently sexual, and they should not treat her differently because of her sex. The children were ages 9 though 13.

Prosecutors say Buchanan stripped in front of the children and commented that she should be able to take off her shirt if her husband could do it. They also say Buchanan was under the influence of alcohol and said she would put her shirt back on if her husband showed her his penis.

Buchanan will have to register as a sex offender if she is convicted.

The children’s mother had reported the incident to authorities.