WEST VALLEY CITY, Utah — Tilli Buchanan and her husband were sweaty and itchy after spending the day installing insulation in their Utah garage, so they stripped off their long-sleeved shirts to cool down, according to her attorneys.
More than a year later -- though that timeline is in some dispute -- Buchanan, 27, of West Valley City, finds herself in court, fighting lewdness charges filed against her in February because her young stepchildren saw her topless.
If convicted of the three Class A misdemeanor charges against her, Buchanan could serve jail time and be forced to register as a sex offender for the next decade, the Salt Lake Tribune reported.
Her husband, who was also shirtless, has not been charged with a crime.
“If we are to lose this, she’s on the sex registry with child rapists and things of that nature,” her attorney, Randy Richards, told reporters. “The magnitude of the penalty on this is enormous.”
Why are we in court today? Because we believe a law that allows a woman to be charged with lewdness for being topless...Posted by ACLU Utah on Tuesday, November 19, 2019
Buchanan, who is also being represented by the American Civil Liberties Union of Utah, was in court for a hearing on Tuesday, at which time her attorneys argued that Utah's lewdness act is unconstitutional because it treats men and women differently.
“What’s important to look at, to see, when you look at the statute, is there’s part of it that says this part of a woman is found inherently obscene and this part of a man isn’t,” ACLU attorney Leah Farrell told reporters after the hearing. “And that really sets up an unequal, unfair dichotomy.”
District Judge Kara Pettit declined to rule from the bench, saying "it's too important of an issue" for an immediate judgment, the Deseret News reported. Pettit said she would hand down a decision sometime within the next two months.
Judge Pettit notes this particular case will NOT go to the #10thCircuit, but it would go to the Utah Supreme Court and then likely U.S. Supreme Court, which looks at all the circuit courts.— Ben Winslow (@BenWinslow) November 19, 2019
She is really giving no signals how she is leaning on this case. @fox13 #utpol
.@acluutah emphasizes the decision made by the #10thCircuit in Free the Nipple v. Fort Collins.— Ben Winslow (@BenWinslow) November 19, 2019
Judge Pettit announces she will NOT rule today. "It's too important of an issue," and promises a ruling in two months. @fox13 #utpl
According to Utah's law against lewdness involving a child, a person can be convicted if he or she exposes his or her genitals, buttocks, anus or pubic area, or the female breast "below the top of the areola," in front of a child.
The law applies if the person does this in public or “in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child.”
Farrell said that standard is unfair to women because they have to do "mental calculus" to determine if going topless will cause alarm, while that same burden is not placed on men, the News reported.
.@acluutah going really big on the #10thCircuit "Free the Nipple" ruling and calling it a "gender-based criminalization." Again, some background on why we're here: https://t.co/3gwDSS1l5P @fox13 #utpol— Ben Winslow (@BenWinslow) November 19, 2019
West Valley Deputy City Attorney Corey Sherwin, who is prosecuting Buchanan's case, told the newspaper that Utah laws do not target women, but said nudity is understood to not only include "lower parts of the body" but also the female breast. He said the lewdness statute applies only to those who intentionally expose themselves around children.
In court paperwork obtained by the Tribune, Sherwin argued that Buchanan stripped down in front of the children, boys ages 13 and 9 and a 10-year-old girl, after stating that, if her husband could go shirtless, she should be able to, as well. The documents alleged Buchanan, who Sherwin claimed was "under the influence of alcohol," later told her husband she would only put her shirt back on if he showed her his penis, the Tribune said.
The incident took place in late 2017 or early 2018, according to prosecutors. Buchanan said, however, that it may have taken place as early as the fall of 2016.
The Tribune reported that authorities became involved earlier this year during a Division of Child and Family Services investigation that did not involve Buchanan. The incident came to light during that unrelated probe and the children's mother called police, saying she was alarmed by what had happened in front of the kids.
Buchanan’s recollection of the incident differs greatly from the claims made by prosecutors.
She said that, when the children came downstairs to find her without a shirt, she used the moment as a teaching experience for her stepchildren. She said she pointed out to the children that they were not made uncomfortable by their father’s bare chest.
"This isn't a sexual thing," she recalled telling the children, according to the Tribune. "I should be able to wear exactly what my husband wears. You shouldn't be embarrassed about this."
Listen to Tilli Buchanan speak following her court hearing below, courtesy of KSL in Salt Lake City.
Richards argued earlier this year that Buchanan should not face charges for being shirtless in her own home while her husband escapes punishment or condemnation for the same behavior.
"The fact that this was in the privacy of one's own home is real troubling," Richards told the Tribune in September. "Different people have different moral positions as far as nudity."
Richards' argument has been based largely on a February opinion by the U.S. Court of Appeals for the 10th Circuit Court, which upheld a lower court ruling that a Fort Collins, Colorado, ordinance banning women from going topless violated their 14th Amendment guarantee of equal protection under the law.
Fox13 in Salt Lake City reported in September that the court narrowed its ruling in the case, Free the Nipple Fort Collins v. City of Fort Collins, to address solely the Fort Collins ordinance. West Valley City prosecutors cited that narrow scope during arguments in Buchanan's case, arguing that the "Free the Nipple" ruling is more narrow than the ACLU might like.
Read the court ruling in full below.
Free the Nipple v Fort Collins by National Content Desk on Scribd
The ruling, which made headlines nationwide, is slowly making its mark on other Utah cases, however. FOX 13 reported that attorneys with clients facing lewdness charges have begun citing the appeals court ruling in their own arguments.
Buchanan said she was devastated by the criminal charges filed against her. "The moment I took to teach the kids, it was kind of smashed," she told the Tribune. "Like you can't teach kids this. In fact, you're going to be charged for even bringing this up."
After Tuesday’s hearing, Buchanan told reporters she is hopeful at least a portion of the state’s lewdness law will be struck down.
“Especially given it was in the privacy of my own home, my husband was right next to me, in the exact same manner that I was, and he’s not being prosecuted for it,” Buchanan said.
Cox Media Group