Court Says Law Allows Man's Crude Act

moshquerade

No Lifer
Nov 1, 2001
61,713
11
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So... this guy gets off scot-free. What would you do if you saw him doing this? Let him know you saw it and tell him to get the f*Ck out of here, or just go about your business like nothing happened?


Court Says Law Allows Man's Crude Act
Legal Loophole Applies To Certain Sex Toy Use In Public


posted Wednesday, July 7, 2010
updated 2:23 pm EDT July 7, 2010


Brooksville Police Dept.




DAYTONA BEACH, Fla. -- A Florida appellate court has ruled it is perfectly legal for a man to sit in his pickup truck outside a convenience store in the presence of a child and wave and insert into his mouth a long, cylindrical plastic sex toy commonly referred to as a dildo.

That’s what David Lowe was doing in December 2008 outside the Shop N Save on Ponce De Leon Boulevard in Brooksville, according to police records.

And it’s what got Lowe, 47, arrested on charges of lewd or lascivious exhibition.

That makes it a felony to, in the presence of someone under 16, commit a “sexual act ... involving the simulation of any act involving sexual activity.

”The 5th District Court of Appeal in Daytona Beach ruled last week, however, that what Lowe was doing did not involve simulated "sexual activity." But Brooksville police sure thought it did.

They were called after witnesses said Lowe was sitting in his truck around 5:40 p.m. on Dec. 28, 2008, waving the plastic, skin-colored device at women emerging from the convenience store and then placing it in his mouth.

The mother of a 7-year-old girl who watched from an adjacent parking space called police after she and her daughter witnessed the behavior and the child asked her what the man was doing.

According to the reports, police stopped Lowe in his truck as he tried to leave the convenience store, and he denied having the sex toy. The officer noted Lowe smelled of alcohol and was wearing sweatpants that were wet and evincing an erection. A search of the truck turned up an open Busch beer can and a lubricated dildo within reach.

After posting a $5,000 bond, Lowe retained attorney Kirk Campbell, who apparently read very closely the statute Lowe was accused of violating and found the behavior is not a crime in Florida.

Hernando County Circuit Judge Jack Springstead disagreed, though, and denied Lowe’s motion to dismiss in July 2009.

So Lowe pleaded no contest to the charge, reserving his rights to appeal the denial of his motion to dismiss. The judge sentenced him to the one day he already served in jail before posting bond, withheld adjudication of guilt and ordered two years of probation, which included alcohol abuse treatment.

But last week, the 5th District Court of Appeal in Daytona Beach found Lowe’s motion to dismiss should have been granted and it remanded the case to Hernando County with orders the case be discharged.

The reason: What Lowe was simulating was not “sexual activity,” as defined by Florida law.

That law says sexual activity is “the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”

The court found Lowe “did not simulate the act of oral sex with the sexual organ of 'another.' The dildo was not near 'another' person’s genitalia … it was apparent he was simulating oral sex with an object. His actions, though clearly rude and offensive, do not violate the express terms of the statute.”
http://www.clickorlando.com/news/24169596/detail.html
 
Oct 27, 2007
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”The 5th District Court of Appeal in Daytona Beach ruled last week, however, that what Lowe was doing did not involve simulated "sexual activity." But Brooksville police sure thought it did.
I think whoever came to that decision needs to experience more "sexual activity".
 

ShadowOfMyself

Diamond Member
Jun 22, 2006
4,230
1
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I would probably laugh at it... who cares?

Im surprised Calippo ice creams havent been banned yet, considering its impossible to eat them without looking like youre engaging in oral activity
 

moshquerade

No Lifer
Nov 1, 2001
61,713
11
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I would probably laugh at it... who cares?

Im surprised Calippo ice creams havent been banned yet, considering its impossible to eat them without looking like youre engaging in oral activity
yeh, ice cream cones are dildos

and let's not leave out bananas and cucumbers.
 

moshquerade

No Lifer
Nov 1, 2001
61,713
11
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Terrible argument. An appeal to personal feelings is NOT the way the courts should work.
Disagree totally.

Some things may fly when done in front of an adult. Doing them in the presence of a child, a minor, is a whole new ballgame.
 

Turin39789

Lifer
Nov 21, 2000
12,219
5
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Disagree totally.

Some things may fly when done in front of an adult. Doing them in the presence of a child, a minor, is a whole new ballgame.
meh. I recall as a teenager that we mimed the act without a device.

Tasteless, etc but I don't see locking the guy up for it, having a conversation, sure.
 

moshquerade

No Lifer
Nov 1, 2001
61,713
11
56
meh. I recall as a teenager that we mimed the act without a device.

Tasteless, etc but I don't see locking the guy up for it, having a conversation, sure.
How about not locking him up but requiring counseling/probation (like they did)? His behavior is not normal, no matter how much anyone here wants to dismiss it.
 

dfuze

Lifer
Feb 15, 2006
11,953
0
71
So essentially he got 1 day for an open container and what I'm going to assume was being drunk. Doubt he drove there sober to do it, so he was probably DUI as well.
 

Turin39789

Lifer
Nov 21, 2000
12,219
5
81
How about not locking him up but requiring counseling/probation (like they did)? His behavior is not normal, no matter how much anyone here wants to dismiss it.
Not Normal != criminal. I'm not dismissing the behavior as peachy keen, but I agree the courts argument that the statue does not describe what he did seems sound. Consider the enforcability of the law you seem to be proposing. What penalties do you want to leverage? Write up a statue and send it to your lawmakers.

He was hit with counseling/probation for alcohol treatment. I imagine the open beer can should have been enough to take care of that.
 

Turin39789

Lifer
Nov 21, 2000
12,219
5
81
So essentially he got 1 day for an open container and what I'm going to assume was being drunk. Doubt he drove there sober to do it, so he was probably DUI as well.
They stopped him as he was leaving and found an open container, so I can't imagine why he wouldn't have gotten a DUI/DWI
 

IceBergSLiM

Lifer
Jul 11, 2000
29,933
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not a big deal. And a child wouldn't know what he was doing either. "mom what is he doing" Answer: I don't know he is crazy...

also.....no surprise here... Florida.
 

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