Definition of “nudity” under 18 Pa.C.S. § 6321(g)
Int. of T.Q.B., 286 A.3d 270 (Pa. Super. 2022), allocatur granted May 31, 2023, appeal docket 71 MAP 2023
The Pennsylvania Supreme Court granted allocatur in this case to consider an issue of first impression: whether the definition of “nudity” under 18 Pa.C.S. § 6321(g), which includes “[t]he showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[,]” requires the showing of the nipple to support an adjudication for transmission of sexually explicit pictures by a minor.
The juvenile court summarized the facts as follows:
On October 18, 2020, Appellant [T.Q.B.] appeared on Instagram Live with the victim, A.D., who is mentally challenged and was 12 years old at the time. Appellant goaded A.D. to lift her shirt, exposing the bottom of her breasts. A.D.’s mother learned of the video when a family member called her that A.D. was on Instagram pulling up her shirt. A.D.’s mother testified that when she viewed the video, she saw A.D.’s stomach, her bra, and “a little bit” of the bottom of her daughter’s breasts. Appellant’s Instagram page was publicly available, and the recorded video of A.D. remained online for several months despite A.D.’s mother’s repeated requests to remove the video. A.D.’s mother learned from the school principal that the video of A.D. was being shared. The principal provided information for A.D.’s mother to contact the police, which she did. As a result of the police investigation, [Appellant] was charged with cyber harassment of a child and transmission of sexually explicit images by [a] minor as a second-degree misdemeanor.
Slip op. at 1-2, quoting Juvenile Ct. Op. A juvenile adjudication hearing took place. At the close of the Commonwealth’s case, T.Q.B.’s counsel moved for a directed verdict as to the count regarding transmission of sexually explicitly images by a minor, on the basis that the “nudity” element of the offense under 18 Pa.C.S. § 6321(g) had not been proven because it was not established that a nipple was shown. The court denied the motion and ultimately adjudicated T.Q.B. delinquent, specifically finding that:
I will say for the record that I did have some trouble with below the bottom of the nipple. In this case, we did see the exposed chest, breast below the bottom of the nipple. The nipple was not present. And that’s the words of the statute. So if you cover the nipple, but you see the bottom of the nipple, then I’m assuming that what’s the legislature intended….
Slip op. at 3, quoting Juvenile Ct. Op.. The court placed T.Q.B. on formal probation, and ordered that she have no contact with A.D. and that she was to write an apology letter. T.Q.B. appealed to Superior Court. Superior Court summarized T.Q.B.’s argument as follows:
Appellant contends: “In plain language, the female breast without a non-opaque covering, such as a bra, nipple pastie or bikini is excluded from nudity.” Appellant’s Brief at 13-14. In support, she relies on two unpublished decisions by this Court: Commonwealth v. Clayton, 707 WDA 2020, 2021 WL 4476959 (Pa. Super. Sept. 30, 2021) (unpub. memo.) and Commonwealth v. King, 1454 WDA 2015, 2016 WL 6962112 (Pa. Super. Nov. 29, 2016) (unpub. memo.). Appellant also mentions that “other holdings regarding nudity in the context of probation violation [and] child pornography … provide a definition of nudity which is inconsistent with the trial court’s ruling.” Appellant’s Brief at 14. For example, Appellant states that in the context of case law interpretating probationary rules, specifically 18 Pa.C.S. § 5903(b), nudity requires a fully exposed breast and that “displays of breasts absent the nipple cannot constitute nudity as prohibited by the statute or probation.” Appellant’s Brief at 18-19, citing Hubler v. Pennsylvania Bd. of Prob. & Parole, 971 A.2d 535, 538 (Pa. Commw. 2009). Likewise, she points to cases involving the liquor license law and nude dancing and claims the nudity element is met where the breasts are “either exposed or the covering fails to be opaque.” Id. at 20, 21-23, citing Com., Pennsylvania Liquor Control Bd. v. J.P.W.G., Inc., 88 Pa.Cmwlth. 385, 489 A.2d 992, 993 (1985) and Purple Orchid, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enf’t, 721 A.2d 84, 85 (Pa. Commw. 1998), aff’d, 572 Pa. 171, 813 A.2d 801 (2002). Appellant asserts that in the present matter, A.D.’s exposure does not “constitute nudity or partial nudity” because “her nipples were covered by her bra.” Id. at 23. She claims the court “relies on the ‘lower part of the breasts,’ being exposed as satisfying the statutory definition of nudity[,]” but “such application is clearly at odds with the definitions of nudity applied by the higher courts.” Id.
Furthermore, Appellant states, “Contrary to the trial court’s assertion, the scope of nudity is ambiguous and its assertion that it is [un]ambiguous does not make it so.” Id. at 24. She contends that the phrase, “any portion,” as set forth in Section 6321, is ambiguous because there could be multiple interpretations – “in one construction it means any anatomical location below the nipple, regardless of the nipple’s opaque covering or not[, that] would encompass breasts … covered by a pastie or a thin bra, because it would show the lower portion of the breast” while “[i]n another [reading], consistent with the rule of leniency, the statute would prohibit any showing of the nipple in a less than opaque covering … [and as such,] nudity would require full exposure of the breasts absent a pasty of covering” Id. at 25. Appellant claims “the trial court’s interpretation would create an expansive definition of nudity, contrary to constitutional principles and commerce.” Id. at 26. She concludes “the proper standard of nudity would be the exposure of the breast and nipple if the nipple is not covered or covered by a translucent, non-opaque covering.” Id.
Slip op. at 6-8.
Superior Court held that there was sufficient evidence to support the adjudication, agreeing with Juvenile Court’s conclusion that the language of Section 6321(g) is plain and unambiguous in its definition of “nudity” as including “any portion” of the breast “below the top of the nipple.” Superior Court found the cases cited by T.Q.B. distinguishable, explaining that:
Appellant’s reliance on Clayton and King is misplaced as neither case is applicable to the argument before us. Clayton concerned a discretionary aspects of sentencing challenge, and Section 6321 was only mentioned in a footnote in the concurring memorandum, wherein it was surmised that if the defendant had been a juvenile at the time he committed the crimes, the offenses would have been handled as summary offenses under Section 6321(a). See Clayton, 707 WDA 2020 (Pa. Super. Sept. 30, 2021) (unpub. concurring memo at 6 n. 5). Likewise, in King, the defendant challenged the lower court’s dismissal of his request of post-conviction relief for lack of jurisdiction because even though he was no longer serving his sentence, he was required to register under the applicable sex offender statute. King, 1454 WDA 2015 (Pa. Super. Nov. 29, 2016) (unpub. memo. at 4). Neither case addressed the question concerning the definition of nudity as set forth in Section 6321.
Likewise, Hubler, J.P.W.G., Inc., and Pink Orchid, Inc. are distinguishable as these cases do not concern the definition of “nudity” in terms of Section 6321. For example, in Hubler, the women depicted in the defendant’s drawings that were at issue did “not have their genitals, buttocks, or breasts from the tops of the nipples down exposed[,]” and therefore, the Commonwealth Court deemed that the drawings did not “depict nudity or partial nudity.” Hubler, 971 A.2d at 539. In J.P.W.G., the appeal concerned the Liquor Control Board’s imposition a fine on a licensee for permitting a topless dancer in its establishment and the Commonwealth Court determined the dancer’s nudity qualified as “lewd, immoral or improper” entertainment, which supported the liquor code prohibition. J.P.W.G., 489 A.2d at 995. In Pink Orchid, Inc., the Commonwealth Court expanded the holding of J.P.W.G., and opined that female performers, who appeared to be bare-breasted because the nipple area was visible even though it was covered by a liquid latex material that became clear and transparent when dry, were providing entertainment that was “lewd, immoral or improper” as defined by the Pennsylvania Liquor Code. Purple Orchid, Inc., 721 A.2d at 93. None of the cases addressed the “any portion” phrase as set forth in Section 6321.
Slip op. at 10-12. While acknowledging a lack of case law on the issue, Superior Court agreed with Juvenile Court’s reasoning that:
It must first be noted that Appellant is not correct that the video showed only the victim’s bra. When A.D. lifted her shirt, she exposed a portion of the lower part of her breasts below the nipple. During the hearing, Appellant argued that the showing of the lower part of the breasts without revealing the nipple should not constitute nudity. Th[e juvenile] court, however, is constrained to apply statutes as enacted by the Legislature. The clear language of the law includes “any portion” of the breast “below the top of the nipple” in the definition of nudity for the purposes of Section 6321. This language is plain and unambiguous. The testimony and exhibit established that a portion of A.D.’s breasts below the top of the nipple was revealed. Consequently, that is sufficient to meet the definition of nudity in Section 6321(g) and thus to support Appellant’s adjudication of delinquency on the transmission of sexually explicit images of a minor.
Slip op. at 9, quoting Juvenile Ct. Op. at 5.
The Pennsylvania Supreme Court granted allocatur to consider:
Whether, in addressing an issue of first impression, the Superior Court panel erred as a matter of law in affirming Petitioner’s adjudication of delinquency for transmission of sexually explicit images by construing the statute’s definition of “nudity” under 18 Pa.C.S. § 6321(g), which includes “[t]he showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[,]” as not requiring a showing of the nipple.
For more information, contact Kevin McKeon or Dennis Whitaker.