From: ran@cbnews.cb.att.com (Robert A. Neinast)
Subject: Re: topless in NY state?
Organization: AT&T
Distribution: usa
Date: Mon, 27 Jul 1992 14:07:21 GMT

In article <1992Jul23.172502.23127@panix.com>, eck@panix.com (Mark Eckenwiler) writes:
> The case is _People v. Santorelli_, . . .

>#     It is notable that, other jurisdictions have taken the position 
># that breasts are not "private parts" and that breast exposure is not 
># indecent behavior [*15]   (State v Parenteau, Ohio Misc 2d 10, 11, 
># citing State v Jones, 7 NC App 165; State v Moore, 241 P2d 455; 
># State v Crenshaw, 61 Haw 68; see also Duvallon v State, 404 So 2d 
># 196), . . .

Since I'm in Ohio, I thought I'd take a look at _State v. Parenteau_.

Here is that ruling.  Note that Hamilton County is the county containing
Cincinnati, the bluenose capital of Ohio.



#                    55 Ohio Misc.2d 10
# 
#                    The STATE of Ohio
#                           v.
#                       PARENTEAU.  *
# 
#     (* No appeal has been taken from the decision
#        of the court.)
# 
#                    No. C-90-CRB-7139.
# 
#            Hamilton County Municipal Court, Ohio.
# 
#                       May 24, 1990.
# 
# 
#     Model was charged with public indecency in connection
# with alleged exposure of her nipple under a "see-through" bra
# worn at a lingerie fashion show.  The Municipal Court,
# Hamilton County, Painter, J., held that the defendant did
# not violate statute, as it prohibited only the exposure of
# "private parts," which had been interpreted to mean female
# generative organs located within the vaginal region.
# 
#     Defendant discharged.
# 
# 
#    --------------------------------------------------------
# 
# 
# William M. Al'ugdah, Asst. Pros. Atty., for plaintiff.
# 
# Henry E. Sheldon II, for defendant
# 
# PAINTER, Judge.
# 
# 
#     This matter was tried by the court on May 7, 1990, the
# defendant, Pamela L. Parenteau, having been charged by the
# Hamilton County Sheriff's office with public indecency, in
# violation of R. C. 2907.09.
# 
#     Defendant was part of a "lingerie fashion show" at a
# nightclub named "Scandals" in western Hamilton County.  The
# charge arose from the modeling by defendant of a lace brassiere
# which was alleged by the officer to be "see-through," in that
# the officer testified he could observe a nipple area through
# the lace fabric.  Defendant was apprehended after she had
# retired to a back room to change her clothing.  The officers
# asked Parenteau for the clothing she was wearing, which they
# confiscated.
# 
#     The evidence produced in court included a lace brassiere,
# a pair of underpants, stockings, and a small square of
# pantyhose fabric.  The panties and stockings were not relevant,
# considering that the charge was not based upon anything in
# connection with the defendant's lower anatomy.  Defendant
# testified that she wore the pantyhose fabric under the bra
# in order to be certain that it was not transparent in the area
# of the nipple.  Defendant further stated that she was wearing
# two such squares, one on each breast, during the performance,
# but that only one was in evidence, since she had already
# removed her bra when she was arrested, and the other square
# had dropped out and was not recovered by the officers.  An
# additional witness testified that she saw defendant cutting
# pantyhose to make the squares before she dressed.  Much ado
# was made about whether one or two squares were worn, but in
# the court's view of the law, the existence or nonexistence
# of the pantyhose material within one side of the brassiere
# is not controlling.
# 
#     The question presented is whether the defendant can be
# convicted of public indecency, in violation of R. C. 2907.09,
# for wearing a lace brassiere which totally covered her
# breasts, but was partially transparent, or "see through."
# If so, does the insertion of pantyhose material, rendering
# the brassiere less "see through," change the result?
# 
# R. C. 2907.09 states, in pertinent part, as follows:
# "(A) No person shall recklessly do any of the following,
# under circumstances in which his or her conduct is likely
# to be viewed by and affront others, not members of his or
# her household:
# 
#     "(1) Expose his or her private parts * * *."
# 
#     The section goes on to prohibit other conduct, none
# of which is involved here.
# 
#     Many issues could be raised, including whether the
# "circumstances," in a nightclub called "Scandals," were
# such that the conduct would be "likely to affront others."
# The only testimony adduced on this issue was the comment
# by the officer when asked by the prosecutor whether he
# enjoyed the show, that he did not.
# 
#     However, the resolution of this case is quite clear
# (though perhaps not transparent), in that the definition
# of "private parts" does not include the situation here.
# Quite simply, a breast is not a "private part" within
# the meaning of this section.  Therefore, it is not
# necessary for the court to determine whether the lace
# covering, with or without the pantyhose material insert,
# would negate the finding of guilt in this case.
# 
#     No constitutional argument was made.  See, _e.g.
# Erznoznik v. City of Jacksonville_ (1975), 422 U.S. 205,
# 95 S.Ct 2268, 45 L.Ed.2d 125.  Nor does this court need
# to reach the issue of whether the conduct herein
# _could_ be prohibited by the state, since the state has
# clearly _not_ tried to prohibit it by the plain meaning
# of this statute.
# 
#     In Ohio Jury Instructions, the term "private parts"
# is defined to mean "genitals." 4 Ohio Jury Instructions
# (1982), Section 507.09.  Likewise, The American Heritage
# Dictionary of the English Language (1981) 1042, defines
# "private parts" as "the genitals."  The Oxford English
# Dictionary (2 Ed.1989) 516, defines "private parts" as
# follows: "the external organs of sex * * *."  A glance
# at Gray, Anatomy of the Human Body (29 Ed.1973) 1331,
# verifies that the female generative organs are all
# located within the vaginal region, and none is anywhere
# near the breast area.
# 
#     Many cases could be cited for the above proposition,
# but clearly it is beyond dispute that breast and
# genitals are two separate things.  "These females
# fondled their breasts and genitals * * *."  _Ellwest
# Stereo Theatres, Inc. v. Alabama, ex rel. Parsons_
# (Ala.1979), 371 So.2d 1.
# 
#     In _State v. Jones_ (1970), 7 N.C.App. 166, 171
# S.E.2d 468, a female defendant was charged under a
# statute prohibiting the "indecent public exposure of
# the private parts of his or her person in any public
# place * * *."  _Id._ at 167, 171 S.E.2d at 468.
# The state sought to define "private parts" as
# including the female breasts.  After a discussion of
# medical terminology, the court held that "[t]he
# female breasts are not private parts within the terms
# of the quoted portion of the statute.
# 
#     "* * * Neither the legislature, bu its enactment
# of laws, nor the courts, by interpretation thereof,
# can make a man a gentleman nor a woman a lady--this
# molding must come from other elements of society."
# _Id._ at 169-170, 171 S.E.2d at 470.  In _State v.
# Moore_ (1952), 194 or.232, 241 P.2d 455, 469, the Supreme
# Court of Oregon held that "[i]t is hornbook law that,
# whenever and wherever the terms 'privates' or
# 'private parts' are used as descriptive of a part of
# the human body, they refer to the genital organs. * * *"
# See, also, _State v. Crenshaw_ (1979), 61 Haw. 68, 597 P.2d
# 13 (female breasts are not genitalia or "private parts,"
# citing _State v. Jones, supra_).
# 
# As it is quite certain that defendant's conduct is not
# prohibited by the statute under which she was charged,
# the defendant must be acquitted.
# 
# _Defendant discharged._


-- 
                                                                  _
". . . and shun the frumious Bandersnatch."                 Nipetlahuini.
Robert Neinast (ran@cblpo.att.com)
AT&T-Bell Labs
Newsgroups: misc.legal,alt.censorship,talk.politics.misc