A man convicted of lewd conduct last year is appealing his conviction, saying the city ordinance is unconstitutional.
Eugene J. Bourdon’s attorney Thomas Collins argued in court last week that the ordinance is “vague and overbroad.”
City and Borough of Juneau ordinance 42.25.010 refers to “any lewd act” but does not define what a lewd act is, Collins said.
“What is a lewd act?” Collins asked Juneau Superior Court Louis Menendez during oral arguments in the case on Thursday. “... Here we don’t have a proper definition.”
Collins asked the judge if he were to relieve himself in an alley on Front Street, and a tourist walking by saw him, would that be considered a lewd act?
“It’s truly not defined, and it’s subject to many different connotations,” Collins said.
Assistant City Attorney August Petropulos fought back by saying lewdness has both a common sense definition — “sexually unchaste or licentious” — and is modified in the city ordinance by two specifying phrases.
The act must take place in public, and the person who observed the act must be “affronted or alarmed,” Petropulos said.
“This is specific enough,” Petropulos added.
The ordinance, as written in the city code, reads, verbatim, “It is unlawful for a person to do any lewd act which that person knows is likely to be observed by others who would be affronted or alarmed.” It’s a class ‘B’ misdemeanor that can be punishable by up to 90 days in jail and/or a $2,000 fine.
Bourdon, 53, was charged with that offense when he was caught with his pants down, masturbating in an aisle of Walmart in July of 2011, prosecutors said. He took pictures of young girls and followed them around in the store unbeknownst to them and the male adult they were with, prosecutors said. A Walmart employee reported the incident to police.
More serious felony charges against Bourdon were dismissed by the state, so the city prosecuted the case on the open lewdness charge.
Bourdon was found guilty after a one-day jury trial in November and was ordered to serve 90 days in jail, the maximum for the charge. Court records show he filed a notice of appeal the next month.
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