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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.”