State v. LudwigState v. Ludwig
- Reporters:
- Before:
- Dennis
The state appeals from a district court judgment declaring unconstitutional an obscenity statute which prohibits the intentional public exposure of genitals. The district court concluded that the penalty provisions
Defendant, Brent Ludwig, was charged with obscenity by intentionally exposing his penis in a public park.
The statute does not violate the equal protection clause of either the state or the federal constitution. Statutory classifications which are not arbitrary, bearing a rational relationship to a legitimate state interest, are permissible unless they impinge on fundamental rights or construct a suspect class. Bazley v. Tortorich, 397 So.2d 475 (La.1981); State v. Petrovich, 396 So.2d 1318 (La.1981); State v. Bonano, 384 So.2d 355 (La.1980); State v. Nettles, 375 So.2d 1339 (La.1979).
The elimination of publicly displayed hard core sexual conduct is a legitimate state purpose. The classification of persons who commit such acts of obscenity as offenders deserving of punishment is reasonably related to that purpose. The inclusion of violators who expose themselves gratuitously with those who expose themselves for commercial gain within the offender class does not offend equal protection guarantees. The state‘s interest in curbing both types of activity is sufficiently strong and its means of doing so is rational. The classification is not arbitrary, does not impinge on fundamental rights and does not establish a suspect class.
Our state constitution offers explicit protection against excessive punishment,
When considering whether the range of sentences authorized is excessive, the relevant factors are the nature of the offense, the statutory range of sentences for other offenses, the range of sentences provided by the statutes of other jurisdictions for the same or similar crimes, and the legislative purpose behind the punishment. State v. Telsee, 425 So.2d 1251 (La. 1983).
The offense of which defendant is accused consists of the intentional exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.
The statute‘s penalty for obscenity is consistent with the overall legislative scheme evidenced by the penalties for other sex offenses affecting the public morality. In contrast with simple battery,
In light of the sentences for these offenses, it is clear that the legislature consistently provides more severe sentences for offenses involving offensive sexual conduct which is especially harmful to both the individual victims and the general public environment. When compared to the penalties for other sex offenses the penalty for obscenity does not appear excessive. The punishment for obscenity is less severe than for other sex offenses, presumably because violence or physical contact is not necessarily involved.
The remaining consideration is the range of sentences provided by the statutes of other jurisdictions for the same and or a similar crime as that of which the defendant is accused. In most states a distinction is made between indecent exposure or public lewdness, such as the acts the defendant has allegedly committed, and the distribution or display of materials depicting hard core sexual conduct.1 In several states the maximum period of imprisonment for indecent exposure or its equivalent is less than six months.2 In most states it is less than a year.3 Moreover, most other states classify indecent exposure as a misdemeanor rather than a felony.4 It should be noted, however, that many of these states have classes or degrees of misdemeanors which allow more severe treatment even though an offense is classified as a misdemeanor.5 Finally, most states do not specifically provide higher sentences for repeated violations of the indecent exposure law.6
It is clear, therefore, that the judgment of other state legislatures is that the penalty range for the conduct of which the defendant is accused should be less than the penalty range Louisiana provides. The range of sentences provided by other states is an important consideration, but this single factor is not determinative. Louisiana‘s penalty is more severe than the penalty in other states in that the Louisiana statute has a maximum period of imprisonment
For all of the above reasons we conclude that the range of penalties provided by the obscenity statute at the time of the defendant‘s alleged offense is not excessive. The nature of the offense, the range of penalties for other offenses, the legislative purpose, and the penalty given in other jurisdictions, when considered cumulatively, indicate that the penalties provided contribute to acceptable goals of punishment and are not grossly out of proportion to the severity of the offense in general. Of course, our conclusion that the range of sentences provided by the statute is not unconstitutional does not preclude a decision that a specific sentence under the statute is unconstitutionally excessive.
The judgment of the trial court declaring the state unconstitutional and granting the motion to quash is reversed. The case is remanded for further proceedings.
REVERSED; REMANDED.