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High court: Actions of Utah 'Diaper Boy' unusual, but not criminal

Published: Saturday, Feb. 15 2014 11:33 p.m. MST

SALT LAKE CITY — The state's high court has found that the actions of a man sent to prison for wearing and displaying a child's diaper were "strange and socially inappropriate," but not criminal.

In the ruling handed down Friday, the Utah Supreme Court reversed the conviction of Barton Bagnes who was sentenced to prison in 2010 for sexual exploitation of a minor, a second-degree felony, and two counts of lewdness involving a child, a third-degree felony.

Dubbed "Diaper Boy" by police, the man apparently had a habit of approaching children and pulling his pants down to his thighs while pulling his shirt up to reveal a child's diaper.

The charges stemmed from a May 2009 incident when Bagnes flashed an Elmo diaper meant for 40-pound plus toddlers to two 9-year-old girls, according to the unanimous ruling written by Justice Thomas Lee.

Bagnes argued, among other things, that there was insufficient evidence to support the charges. The high court agreed.

"Barton Bagnes undoubtedly startled the young girls he encountered in their neighborhood. And his conduct was certainly deplorable," Lee wrote. "But the evidence did not sustain the charges against him. … Some forms of antisocial behavior are simply beyond the reach of the criminal law."

Bagnes claimed at his sentencing that his decision to wear diapers was part of a personal quest to address the issue of bed-wetting and incontinence in children and said he was hoping to prevent shame and abuse.

"I did it because kids that have this problem ... are told to keep secrets, tell lies," he said in 2010. "And it makes them that much more likely to keep secrets about abuse."

But prosecutors stated that Bagnes had been acting lewdly for more than 10 years and noted 14 incidents dating back to 1999.

Third District Judge Terry Christiansen sentenced Bagnes to prison — one to 15 years for sexual exploitation of a minor and two terms of zero to five years for the lewdness counts. The sentences were ordered to be served concurrently.

Lee wrote that while the diaper was "unusual, even disturbing" and didn't entirely fit, it did not expose any of Bagnes' private parts. There was also no evidence that Bagnes simulated any inappropriate sexual acts while in the diaper.

"A diaper is one of the most opaque, bulky articles of clothing one could imagine wearing as an undergarment," the decision states. "If virtual exposure is the question, we cannot deem the public display of a diaper to qualify unless we are prepared to also criminalize a range of other clothing that is much less opaque and far less obscuring (such as swimwear, or even athletic or workout attire)."

The sexual exploitation count stemmed from Bagnes giving the girls a flyer of children in diapers. Lee wrote that while the flyers did "flaunt" the diaper-clad areas of those depicted, they did not make those regions of the body visible.

Lee noted that, if anything, society has moved more and more toward exposure of the body. He pointed to those who "flaunt" their bodies at the gym, pool or beach and even on the pages of magazines.

"Right or wrong, our society roundly tolerates — and often encourages — ever-less sartorial coverage of the human body."

Email: emorgan@deseretnews.com, Twitter: DNewsCrimeTeam

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