Prosecutor files to dismiss indecent exposure charge against ERA protester

Capitol Police covered Michelle Renay Sutherland with jackets before leading her away and charging her with a single count of indecent exposure Monday during a protest in support of the Equal Rights Amendment. (Ned Oliver/Virginia Mercury)

From The Bulletin, the Mercury’s blog, where we post quick hits on the news of the day, odds and ends and commentary.

Richmond Commonwealth’s Attorney Mike Herring is asking a judge to dismiss an indecent exposure charge against a woman who was arrested outside the Capitol last month while protesting in support of the Equal Rights Amendment.

Michelle Sutherland, 45, of Brooklyn, N.Y., had been reenacting the state seal, which includes an exposed breast. She spent three nights in jail when a judge initially denied her bail.

In a five-page motion, Herring wrote that Sutherland’s conduct didn’t meet the state’s definition of obscene.

He cited two cases: One in which a woman was charged for exposing her breasts to the 12-year-old children of a family friend and asking “Would you want some of Mama Kim’s milk?” Courts ruled that case did not qualify as indecent exposure because the “actions, albeit bizarre, were always done in a ‘joking’ manner’” and there was no evidence her “dominant purpose in exposing her breasts was sexual in nature, or fostered a shameful or morbid interest in nudity, sexual conduct or sexual excitement.”

The second case he cited was that of a Newport News man who was arrested while biking around the city in a thong that barely concealed his genitals. In that case, the Supreme Court of Virginia ruled the behavior did “evince ‘a shameful or morbid interest in nudity.’”

Herring wrote that the facts in Sutherland’s case more closely resembled the first than the second because there was no evidence that Sutherland exposed herself in a manner that could be considered sexual. He wrote that the fact that the bike rider appeared to be fully nude to bystanders and that Sutherland’s exposure was more limited also played a role.

Arguments that the display was part of artistic or political expression did not figure into the decision, he wrote, because footage showed Capitol Police only intervened after about 10 minutes, when it appeared the demonstration had concluded and “Sutherland stood on the sidewalk and removed part of her costume, exposing both breasts.”

According to Herring’s filing, “Capitol Police officers approached her and asked her to cover her breasts because the demonstration had ended. She did not comply and repeatedly stated that she could not find her shirt. Officers observed her shirt nearby. Ms. Sutherland then put her costume back on, her left breast still exposed, and returned to the intersection alone.”

In an email, Herring said he “filed a detailed motion in hopes that the public would have a clearer sense of the incident and the applicable law.”

He said he did not fault Capitol Police for bringing the charges, saying they “reasonably and professionally assessed the facts and handled the incident extremely well.”