卑猥な言動とは何なのか。
警察官が県迷惑行為防止条例違反で現行犯逮捕された事件があったようだが、容疑は自らの股間をズボンの上から触った行為が卑猥な言動にあたるとのことであった。
加害者は罪を認めているものの、並べられた文言を見ると、「仕事後の解放感から漫然と触り続けてしまった」「ことさらに触った」など、どうにも犯罪としてしっくりこない。露出したわけでもなく、みずからの体に触れただけで犯罪になって現行犯逮捕されるとすれば恐ろしい世の中である。
男性であれば経験があると思うが、痒い時や痛い時もあり、人前であっても動かしたい欲求に駆られることもあるだろう。女性でも食い込んだ下着を直す仕草をしているようなこともある。当然誰しも人に見られたいと思ってやっているわけではなく、大都会の人混みの中で人目に隠れてすることが困難であるためにせざるを得ない行為であるはずである。
この警察官がどういった動機でそのような行為をしたのかは不明であり、言葉を信じれば漫然と触ってしまったとのことで、必然性は乏しかったということであるかもしれないが、しかし服の上から触るぐらいのことで現行犯逮捕というのはあまりに厳しく警察官に同情せざるを得ない。ポケットに手を入れて触れば良かったのだろうが、後の祭りである。
卑猥とは何をもって卑猥と言うのか。顔や声が卑猥だと言われる人もいる。定義はあくまで主観であり、ｊこれが通るのであれば気に入らない人物を卑猥だという理由で逮捕することも可能となる。罪刑法定主義であり、明確な定義なく逮捕できるのは気がかりである。
公然わいせつなどでわいせつ性を判断する場合、昭和55年11月28日の最高裁判例判例によれば「その時代の健全な社会通念に照らして判断すべきである」とされている。すなわち、非常に難しい判断であるということである。そのような罪であるにもかかわらず、果たして現行犯逮捕することが適切だったのだろうか。
そもそも軽微な犯罪である場合、身分を明らかにすれば現行犯逮捕は出来ないはずである。専門家ではないため迷惑行為防止条例違反が軽微であるかどうかは把握していないが、刑法違反ではなく条例違反であることを考えれば軽微な範囲に入るのではないかと思われる。
自分の体に触れることが犯罪となって現行犯逮捕される可能性があるとは全く知らなかった。これに対しては強く抗議したいが、そのような運用がなされているのは事実であるため、一個人としてはそれに対応せざるをえない。今後は人目につく場所で股間を触らないよう、十分注意したい
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