Boxer Shorts, Swimming Trunks, and Indecent Exposure A Tract Book Essay By Anthony J. Fejfar, J.D., Esq.

, Coif © Copyright 2007 by Anthony J. Fejfar

When I was in law school, in the first year, Professor Snowden taught by legal process class. It was an interesting class. Among other things, Snowden argued that the only really workable epistemology was that of Coherence Theory. But, let’s save that for another day. The most interesting thing that Snowden taught that semester was the jurisprudential idea that asked, “Is X a Y for purposes of Z?” The idea here was, as I will explain below, that any word X might have a different meaning in a different context. “Poultry” in one case might include ducks and in another case might only include chickens. Let us consider the example below. In this example, Joe is walking down the parking lot in the summer in the city park, wearing boxer shorts underwear. The park has a swimming pool, and some other kids are playing volley ball, wearing only their swim suits. A police officer walks up to Joe and says, “I see that you are only wearing underwear for shorts, I guess I should cite you for indecent

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exposure.” “But officer,” replies Joe, “my Dad is a lawyer and we reasoned through this situation and decided it was ok.” “Really, why?” asked the

police officer. “Well,” said Joe, “I argue that it is ok to wear swimming trunks in the park, and I offer as evidence of this the fact that those guys over there playing volleyball in swimming trunks are not getting cited for indecent exposure. I further argue that boxer shorts are analogous to swim trunks and since swim trunks are not citable, neither should be boxer shorts.” “Well,” said the police officer, “I guess I’ll have to radio my watch commander.” (radio conversation) “Well, the watch commander agrees with you, you are free to go.” Now, let’s think for a moment about how Professor Snowden’s formula applies to the above hypothetical situation. Recall, the formula is the question, “Is X a Y for purposes of Z?” If we plug in some ideas from above we get the following: “Are the ‘boxer shorts’ a pair of ‘swim trunks’ for purposes of the ‘indecent exposure ordinance’?” Here we look to how

close the analogy is and then to underlying public policy of the statute or ordinance. With respect to the closeness of the analogy it is apparent that boxer shorts and men’s swim trunks closely resemble each other. They are both a type of men’s short, having approximately the same length of leg. Both

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seem to be made out of cotton. The boxer shorts have a different design on them, but this seems to be an incidental or “accidental” difference. Since the two seem to be so close, let us now consider the underlying public policy of the ordinance. The basic idea of the ordinance as applied to a male, is that a person’s male genitals are not to be exposed to public view. It is argued that since both the boxer shorts and the swim trunks hide the genitals of the wearer, then they should be treated the same for purposes of the ordinance. So, it is argued that “the ‘boxer shorts’ are ‘swim trunks’ for purposes of the ordinance, and since kids with ‘swim trunks’ are not cited, so too a kid with ‘boxer shorts’ should not be cited.”

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