In Utah, a woman is being charged with three counts of lewdness involving a child and may have to register as a sex offender for the next decade because her stepsons walked in on her while she was topless. Is it the responsibility of government to ensure a moral rearing of children, and if so, based on whose morality?
Tilli Buchanan and her husband were hanging drywall in their garage, near the end of 2017 or the beginning of 2018. They both stripped down to their underpants to limit the amount of gypsum dust they would need to clean from their clothes. While they were working, Tilli’s three stepsons, aged 9, 10 and 13, entered the garage. Tilli and the children’s father sat the boys down, and Tilli spoke with them about gender equality and how people should not be ashamed to show skin if they choose. They finished their work, showered and had dinner.
Your first question is probably who reported this event to the authorities. My initial assumption was that one of the children must have told a friend and another parent or a teacher reported the incident. My podcast partner, Liberty Larry, said he was certain it had to be the boys’ mother. Point to Liberty Larry!
Social services spoke with the boys’ mother while conducting an unrelated investigation. I could not discover the nature of that investigation, but I suspect it relates to a custody dispute. As Liberty Larry said, parents will use anything they can as ammunition in divorce and custody battles. (If our assumptions are correct, this would be an extreme example of a rarely-discussed aspect of divorces: parental alienation.) Needless to say, she took this opportunity to report the event to the authorities, leading to the current case.
Think of the implications. Can any parent in Utah be prosecuted for lewdness if one of their children walks in on them changing, or in the bathroom or engaging in sexual activity with their spouse? Be sure to lock those doors! Maybe prosecution would only be brought against stepparents. Does that make it any better?
I think her real crime was not responding to the children walking in with the appropriate amount of shame. If she had dived behind something or quickly covered herself with a piece of drywall, it would have just been one of those funny, embarrassing incidents that, while not forgotten, is rarely mentioned. Instead, Tilli committed the crime of taking the opportunity to talk to her stepchildren about gender equality, why they shouldn’t have to be ashamed about their bodies and why they should be free to choose what of themselves they wish to share with the public.
In a letter to the prosecution, demanding that the case be dropped and Tilli Buchanan’s record be sealed, her attorneys make the case that Tilli is being prosecuted because she is a woman:
Because Tilli Buchanan is a woman, says the state of Utah, she is not allowed to strut shirtless through her own home. Because Tilli Buchanan is a woman, she is not free to display her body with pride, but must instead conceal it in shame, even in the privacy of her own home. Because Tilli Buchanan is a woman, her bare chest is censured as being inherently pornographic and perverse, while her husband’s bare chest is celebrated as an emblem of strength and pride. Because Tilli Buchanan is a woman – an only because she is a woman – the State now seeks to condemn her as a child sex offender for engaging in the exact same non-sexual conduct as her lawfully faultless husband. Tilli Buchanan is being singled out for prosecution solely on the basis of sex.
Most Americans can agree that the State stepping into your home to this degree, regulating the way you dress and what you teach your children, is a step too far. But what of the more general case? The attorney, David Lane, has represented the Free the Nipple movement, which promotes gender equality through protests and civil disobedience related to gender-biased public nudity provisions. Their crusade focuses on allowing women to breastfeed in public (babies gotta eat, too), and the inherent gender discrimination of not allowing the same privileges or enforcing the same restrictions on both men and women.
I can get behind that. Public indecency laws used to restrict men from baring their chests in public, too. Men protested in very similar ways and got the laws changed, but only for men. Perhaps you worry about an epidemic of public nudity. However, social mores already limit the acceptable places for any person to go shirtless. This is a problem easily handled by a respect for private property rights. Any business should be able to allow or disallow guests based on their dress. In the South, we already see the signs in the windows:
No Shirt, No Shoes, No Service.
Would it become discrimination to refuse service to nude people or topless women? We have already seen the government enforce prohibition on discrimination for lifestyle choices, when they can be connected to other protected classes, such as religion or race. Would nudists or naturists (or whatever they call themselves these days) suddenly become a protected class? As already stated, this question is easily resolved, if you remove government from the equation, by private property principles.
But won’t someone please think of the children?! If public nudity were legalized completely, that would apply to children, as well, lest we become ageist. Gasp! There is already a fear of pedophiles and sexual violence against children. Would children and teens going nude in public exacerbate this problem? I certainly wouldn’t want my children to go naked in public. The question becomes, is it the responsibility of the State to protect your children from these presumed dangers.
Also, children would witness public nudity, and not all parents are content with their children seeing naked people. We have a conflict between those who want the freedom to choose for themselves what they want to show the public and those who do not wish to see it – a problem which already exists, by the way. Consideration of a proscription should always err on the side of personal liberty. Those claiming the freedom to choose take precedence over those claiming freedom to not witness the results of the others’ choices. Just because I oppose and would not engage in a particular activity, does that give me the right to prohibit that activity of you, as well?
It is reasonable to demand my tolerance of an activity of which I disapprove, as long as it does not cause harm to me. There is a thin line, though, between requiring tolerance and requiring approval. Public nudity provides an interesting example, in this regard, because tolerance of public nudity is tacit approval, since permission would almost certainly put me in a situation where I was forced to be a part of it, even if I do not engage in the activity myself.
I recently read a suggestion that the purpose of government is to resolve incompatible goals. (I believe I read this in Thomas Barnett’s The Pentagon’s New Map, but I cannot recall.) I do not agree with this assertion, rather I believe that government’s purpose is to protect our individual rights and liberties. A resolution, however, lies in self-government. Local control of these kinds of questions gives people the opportunity to settle or move to the place where their values are most closely reflected in the law.
If the puritanical town in which I live enforces strict public nudity laws, they are free to do so; and those who wish to avoid public displays of nudity may settle, shop or recreate here with confidence. Meanwhile, the neo-hippie town next door can choose to permit public nudity on any scale. Those who approve may settle, shop or recreate there freely. It is much easier to relocate to an amenable polity when the polities are small or local than when a large, federal – or even state – government settles these disputes. It is easier to move to the next town or county than to leave the state or the country.
But here’s the rub: the attempt to legislate morality. Luckily, it has the same resolution. Robert Heinlein wrote: “It is a truism that almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so, and will follow it by suppressing opposition, subverting all education to seize early the minds of the young, and by killing, locking up, or driving underground all heretics.”
We have a history of morality legislation in the South. Blue laws (or Sunday laws) were widespread until recently and are still maintained in counties across the South. In college, some of my friends, drinking through Saturday night and into the following morning, drove to Tennessee, two hours away, to buy more beer, because alcohol sales were forbidden on Sundays in Georgia. Setting aside this reckless behavior, morality legislation has more insidious effects, like those predicted by Heinlein.
I grew up in the Episcopalian church, where wine is served with Communion. One Sunday morning, it was discovered that there was not enough wine to serve Communion for all of the church services. Our priest, in his vestments, went to the local grocery store to buy wine for the church and was refused. Generously, one of the assistants brought wine from home to supplement what was at the church; so Communion could be served to everyone. You see the irony, though, of a priest being denied purchase to supply his church in pursuance of a law rooted in religious morality.
Through the power of government, the primarily fundamentalist population had made the new commandment: Thou shall not buy alcohol on the Lord’s day. And, it is a short step from thou shall not buy to thou shall not imbibe. Imagine the agents of government waiting outside every Catholic, Episcopalian or any other church that serves wine with Communion to arrest, harass or fine anyone who leaves with the smell of alcohol on their breath. Imagine, again, if the State takes the enforcement of this legislation to enter your home. A neighbor calls the police because they think they saw you pouring a glass of whiskey or opening a beer to enjoy a football game. Next, you receive a hard knock on your door….
Again, the purpose of government, as laid out by the US Founders, is to protect the natural rights and liberties of the people. If morality legislation is inevitable, it should be confined to communities, acting in the same manner as any other social mores. Legislation becomes redundant, as social pressure is more effective at regulating behavior than law. More importantly, reliance on private property rights and self-government introduces more options in resolving disputes over personal behavior. In this case, as well as so many others, the State will most effectively resolve incompatible goals by stepping out of the way and letting communities decide how they wish to govern themselves.
