[Posted March 7, 2013] There are a couple of very interesting aspects to Barnes v. Commonwealth, handed down on Tuesday. Barnes is an inmate in the Newport News jail. When a female employee of the local pretrial-services unit came to the jail to interview another inmate, she saw Barnes standing at the front of his cell, masturbating and “looking at her with ‘a grin on his face.’”

That conduct actually violates two separate statutes – the prohibitions against indecent exposure and sexual display. But both statutes have a “public place” component, thus raising the issue of whether someone who’s In Jail (not Just Visiting) is in public. The trial court found that this was public enough, and gave Barnes six extra years of free room and board.

The CAV granted a writ, and on Tuesday, a panel unanimously affirms. It notes that the indecent-exposure statute provides a disjunctive component of the public element: “in any public place, or in any place where others are present.” There’s little doubt that others were present in jail – there’s never a shortage of crooks around these parts – so there seems little doubt that that element is met for that charge. The sexual-display statute, however, is conjunctive: “in any public place where others are present.” That leaves us back at Square One, which is figuring out whether the inside of a jail is a public place.

The judges turn to the decisions of other states and conclude that jail is, indeed, public, even though not all members of the public get to see the inside. Those cases generally focus on the question whether other people are likely to be present, not on the question whether everyone enjoys unrestrained transit. The convictions and sentences are accordingly affirmed.

One detail caught my attention as I read through this opinion. It’s this sentence near the end of the court’s recitation of the procedural posture of the case: “After appellant testified, he again argued the alleged offenses did not occur in a public place, because the jail was essentially his home.”

His home. Well, the devil within me could not be restrained from postulating,

Be it ever so humble,
There’s no place like jail.