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Perspectives in lewdness on both sides of offense

By HOWARD TROXLER, Times Columnist
Published October 24, 2003

Just over a year ago, undercover detectives from the Pasco County Sheriff's Office fanned out for a grim, grueling and unpleasant duty.

In a spirit of diligence, they staked out their suspects, studied the illegal conduct at length with professionally trained eyes, and finally, once the critical evidence had been garnered, took in the offenders.

What I am trying to say is, the Pasco cops hung out in strip clubs and then busted some of the dancers.

The names of some of the businesses investigated were "Lollipops," "Calendar Girls," "Players Club" and my own favorite (favorite name, I mean), "Sin-na-bar."


Of the numerous criminal charges that resulted from this dragnet, the one that merits our attention today involves the offense of "lewdness." Lewdness, or even offering to be lewd, is forbidden in Florida Statutes, Chapter 796.07(2)(e). The statutes further define lewdness as "any indecent or obscene act."

These Pasco cases went in front of the Honorable Marc H. Salton, a judge at the county court level in Pasco County. County Court is the lowest tier of our system of jurisprudence and typically handles the likes of traffic violations and bar fistfights.

Salton, perhaps inspired by the weighty legal issues implicated by the case, paid special attention to the legal arguments raised by the dancers' defense attorneys. He wrestled with the matter as would any judge who takes his duty seriously.

In due course, Salton produced a majestic 11-page opinion, which said, in essence:

The crime of "lewdness" requires that somebody has to be offended.

Police officers don't count as somebody who can be offended.

Therefore, case dismissed.

It should be stressed here that the learned Judge Salton did not make up this reasoning out of thin air. There is precedent. Let us consider, for example, the case of Campbell v. State, which involved activity in a certain Yum-Yum Tree Lounge in Pensacola, decided by the Florida Supreme Court in 1976.

In that case, undercover officers observed a waiter fondling a customer's "public" (sic) area for several seconds, while deftly holding a tray of drinks aloft with the other hand. (Funny how most of us try hard not to mix up the word "public" the other way.)

This led the Florida Supreme Court to toss the charges with the following observation, the likes of which you will not see in the law books too often:

Who, in the dark and crowded recesses of the Yum-Yum Tree at 2:00 a.m. on July 6, 1974, was "offended'?

Who, indeed? On top of this, other cases on the books stand for the idea that police themselves may not roam our society, seeking to take offense so that they can then file criminal charges. It is too arbitrary, too erratic a yardstick. The taking of offense of police officers, by itself, is not proof.

(This seems a little hard on our women and men in blue, who, I am sure, get offended at things all the time, just like the rest of us. It appears, however, that the sacrifices asked of them by society must include depriving them even of this small bit of humanity.)

Judge Salton's ruling has not passed unnoticed. Indeed, it has caused concern within the Pasco-Pinellas State Attorney's Office, which is appealing the case to the Circuit Court level. We run the risk of being unable to charge any consenting adults with the crime of being lewd, and we can't have that.

Marie King is the assistant state attorney handling the appeal. She told me that under this strict a standard, it would be hard, maybe even impossible, ever to prove the crime of lewdness.

"Maybe, if there's someone who paid to go into once of those places, and THEN complained ... " she said, thinking out loud, but then added: "It seems kind of unlikely."

Unlikely, yet perhaps she has hit on an idea. Perhaps future detectives might enlist the aid of "secret shoppers," who could seek admission to these establishments yet still offer to testify later as an Offended Person.

"I was looking for tango lessons," a patron might testify in tears, "but when I walked into the Tanga Lounge, I got the shock of my life."

The world waits for the appeal.

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