Make Believe drummer Nate Kinsella probably wishes he’d kept his pants on. According to a police affidavit, at a Christian rock venue in Oklahoma in June he dropped his shorts in front of the crowd, then wrung the sweat from them over the heads of audience members. He’s now facing a charge of indecent exposure, a felony that carries penalties of up to $20,000 in fines and ten years in prison. If convicted, Kinsella would also have to register as a sex offender in Oklahoma.

Currently free on $2,500 bond, Kinsella has some time to wonder about his fate. A court hearing scheduled for last week was pushed back to late October, and the rescheduling may throw a wrench into Make Believe’s plans. The band, an offshoot of emo faves Joan of Arc, will release its debut full-length, Shock of Being, on Flameshovel on October 4 and then spend the following weeks juggling legal obligations and tour dates.

On the advice of his attorney, Kinsella declined to comment for this story; Make Believe front man Tim Kinsella, Nate’s cousin, agreed to talk but would not address the specifics of the case. In late spring, he says, the group signed on for a 14-city tour with a pair of Christian rock bands, Veda and MewithoutYou. “We thought it would be fun to do a Christian tour because we wanted to play in front of people who had no idea who we were or what to expect,” Tim says. “The audiences were definitely not that into us, but there was only the one show where it got really weird.”

That show took place June 28 at the Wherehouse, an all-ages Christian rock venue in Bartlesville, Oklahoma, about an hour north of Tulsa. It was a broiling-hot day: temperatures were in the mid-90s outdoors and even hotter inside the club, which wasn’t air-conditioned. All four members of Make Believe took the stage that evening stripped to the waist and wearing shorts, but as the heat became increasingly unbearable they began cutting songs from their set. At some point during the show, according to an affidavit filed by Bartlesville police officer Ben Hollander, Nate Kinsella got up from his drum kit, walked to the front of the stage, and “took his pants off and exposed his genitalia and penis to the crowd.”

According to witnesses, outraged club promoters hustled the band offstage and flagged down deputy Danny McDonald of the Washington County Sheriff’s Department, who was handling security for the show. McDonald held Kinsella until two officers from the Bartlesville Police Department arrived. As the crowd of approximately 200 spilled outside to watch, headliners MewithoutYou threatened not to go on unless the club refused to press charges against Kinsella. The club owner acquiesced, and MewithoutYou eventually played its set, but more officers had arrived on the scene and were interviewing witnesses. According to the affidavit, “after asking a mass of people if they had been disturbed by what they had seen, approximately half of the crowd raised their hands.”

“As officers were obtaining witness information from those who were willing,” the affidavit says, “it became known that after [Kinsella] had taken his shorts off he then began to ‘wring them out’ on the heads of people in the front rows of the concert while exposing himself.”

Shirtless and barefoot, but with his shorts back on, Kinsella was placed against a police car, handcuffed, read his rights, and, according to the affidavit, arrested on charges of indecent exposure, simple assault, and disturbing a religious meeting. (The latter two charges were dropped when he was booked.) The affidavit says Kinsella told officers that “due to his band being non-Christian it was part of the ‘act’ to disrobe on occasions while onstage.”

With his bandmates following, Kinsella was taken to the Bartlesville city jail, where he was fingerprinted, photographed, and processed. Officers told his bandmates that Kinsella might be released shortly after being booked, but posting bond on the indecent exposure charge required a judge’s approval, so Kinsella was held overnight. At 4 AM he phoned Tim, pleading with him to find an attorney; Tim and his wife, Amy Cargill, made a series of frantic phone calls, eventually finding a Tulsa lawyer, Stephen B. Riley, who could be present at the arraignment the next day. A not-guilty plea was entered, and Kinsella was released with orders to return for a preliminary hearing on August 5. The band went to Springfield, Missouri, where it played the last show of the tour, then returned to Chicago.

The indecent exposure charge is punishable by a fine ranging from $500 to $20,000, a prison term ranging from 30 days to 10 years, or both. Given the eyewitness reports–three members of the audience gave statements filed with the affidavit–and his apparent admission to police that he did in fact take his shorts off, a trial probably is not in Kinsella’s best interest. He could try to plea-bargain, taking steps to receive a lighter sentence. At the August 5 hearing he volunteered to undergo a psychological evaluation and take a drug test. (Washington County district attorney Frederick S. Esser, who is prosecuting the case, did not respond to repeated requests for comment on this story.)

Kinsella’s legal situation threatens to overshadow the release of Make Believe’s upcoming Shock of Being, and the band’s had more bad luck since then. It had scheduled an extensive tour leading up to the release of the album, including a series of east-coast dates in late August and early September. But last month Nate Kinsella broke his wrist when he was hit by a car while riding his bicycle in Wicker Park, forcing Make Believe to cancel those shows.

He’s since been cleared by doctors to play drums again, and the band hopes to make up the canceled dates later this year; in the meantime it’ll play a handful of shows before and during next week’s CMJ festival in New York, returning to Chicago to play the Bottom Lounge on September 21. A tour of mostly western and southwestern states is slated for October, but because Kinsella’s next court date will likely fall in the middle of it, the band may be forced to cancel more shows. “Our scheduling has to remain kind of vague until he is sentenced,” Tim Kinsella says. “We’re still planning on doing stuff, obviously, to support the record.”

But he admits that isn’t the first thing on the band’s mind these days. “They’re threatening Nate with a lot of stuff,” he says. “Our main concern is what happens to him.”

Art accompanying story in printed newspaper (not available in this archive): photos/Bender.