From: eck@panix.com (Mark Eckenwiler)
Newsgroups: misc.legal,rec.nude,soc.women
Subject: Re: topless in NY state?
Summary: perfectly harmless, according to NY's highest court
Date: 23 Jul 92 17:25:02 GMT
Followup-To: misc.legal
Organization: Culturale Elit

In <1992Jul23.142551.11301@athena.mit.edu>, rlcarr@athena.mit.edu sez:
>I was reading a newspaper article the other day about some protest on
>the Peace Bridge between NY and Ontario.  In passing, it mentioned that
>there is now a court order in NY state that says women can be topless
>in public.  Having not heard anything at all about that case I was
>wondering if anyone knows:
>(1) the details of the case?
>(2) what locations, behavior, etc. does the ruling apply to?
>(3) is it a temporary court order or a final ruling?
>(4) can the state appeal it or is it final?
>(5) does it nullify all municipal ordinances on the matter?

The case is _People v. Santorelli_, and was decided by the NY Court of
Appeals earlier this month.  The ruling is final: the Court of Appeals
is the highest court in NY, and has final authority over the interpre-
tation of NY law.

My short description is that the court construed NY Penal Law sec.
245.01 (which bars public display of the female breast "below the top
of the areola") as applying only under narrow circumstances, such as
where the woman's conduct is "lewd" or performed in a commercial
setting (topless bar, for example).  But don't believe me; here's the
opinion: 


           The People &c., Respondent, v. Ramona Santorelli and Mary
                  Lou Schloss, Appellants, et al., Defendants.
 
                                    No. 115
 
                          COURT OF APPEALS OF NEW YORK
 
 
 
                             July  7, 1992, Decided
 
DISPOSITION: Order reversed and informations dismissed in a 
memorandum.
 
COUNSEL: Herald Price Fahringer, for appellant Santorelli.
 
Donald W. O'Brien, Jr., for appellant Schloss.
 
Elizabeth Clifford, for respondent.
 
JUDGES: Chief Judge Wachtler and Judges Kaye, Hancock and Bellacosa 
concur. Judge Titone concurs in result in an opinion in which Judge 
Simons concurs.
 
 
   The order of Monroe County Court should be reversed and the 
informations dismissed.
 
   Defendants' claim that Penal Law sec. 245.01 offends the equal 
protection clauses of the Federal and State Constitutions was 
expressly passed upon by County Court, and its disposition of that 
claim was a necessary basis for its order of reversal of the 
Rochester City Court which had dismissed the informations (see, 
People v Craft, 149 Misc 2d 223 [Monroe Co Ct]; People v Craft, 134 
Misc 2d 121 [Roch City Ct]). We, therefore, reject the People's 
argument that under CPL 470.35(2)(a) the Court of Appeals lacks 
jurisdiction to pass upon that claim.
 
   Defendants were arrested for violating Penal Law sec. 245.01 
(exposure of a person)   [*2]   when they bared "that portion of the 
breast which is below the top of the areola" in a Rochester public 
park. The statute, they urge, is discriminatory on its face since it 
defines "private or intimate parts" of a woman's but not a man's 
body as including a specific part of the breast. That assertion 
being made, it is settled that the People then have the burden of 
proving that there is an important government interest at stake and 
that the gender classification is substantially related to that 
interest (see, Mississippi University for Women v Hogan, 458 U.S. 
718, 725). In this case, however, the People have made no attempt 
below and make none before us to demonstrate that the statute's 
discriminatory effect serves an important governmental interest or 
that the classification is based on a reasoned predicate. Moreover, 
the People do not dispute that New York is one of only two states 
which criminalizes the mere exposure by a woman in a public place of 
a specific part of her breast.
 
 
   Despite the People's virtual default on the constitutional issue, 
we must construe a statute, which enjoys a presumption of 
constitutionality, to uphold its constitutionality if a rational  
[*3]   basis can be found to do so (see, McKinney's Cons Laws of NY, 
Book 1, Statutes, sec. 150c; People v Price, 33 NY2d 831 [defendant's 
equal protection claim not addressed because statute was construed 
to not apply]; Childs v Childs, 69 AD2d 406, 418-421).
 
   Penal Law sec. 245.01, when originally enacted (L 1967, c 367, sec. 1), 
"was aimed at discouraging ' topless'  waitresses and their 
promoters (see, Practice Commentary by Denzer and McQuillan, 
McKinney's Cons Laws of N.Y., Book 39, Penal Law, sec. 245.01, p. 200)" 
(People v Price, 33 NY2d 831, 832, supra). Considering the statute's 
provenance, we held in Price that a woman walking along a street 
wearing a fishnet, see-through pull-over blouse did not transgress 
the statute and that it "should not be applied to the noncommercial, 
perhaps accidental, and certainly not lewd, exposure alleged" (id. 
at 832). Though the statute and the rationale for that decision are 
different, we believe that underlying principle of People v Price 
(supra) should be followed.
 
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    n1 Contrary to the position of the concurrence (see concurring 
opn, at 4), nothing in the Legislature's repeal and replacement of 
former Penal Law sec. 245.01 (L 1983, ch 216), subsequent to our 
decision in Price, affects the holding of Price or our analysis 
here. The revised sec. 245.01 expanded the application of the former 
statute and prohibited full nudity by males and females (see, People 
v Hollman, 68 NY2d 202). In its definition of "private or intimate 
parts" as including women's breasts, however, the revised statute 
retained the same discriminatory infirmity which occasioned our 
decision in Price. We find no basis in the revised statute or in the 
statutory history for not giving effect to Price here (see, Bill 
Jacket, L 1983, ch 216, Governor's Approval Memorandum).
 
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    We, therefore, conclude that Penal Law sec. 245.01 is not 
applicable to the conduct presented in these circumstances and that 
the City Court was correct in dismissing the informations.
 
CONCURBY: TITONE
 
CONCUR: Titone, J. (concurring):
 
   Citing the maxim that wherever possible statutes should be 
construed so as to sustain their constitutionality (see, e.g., 
Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v 
Stamatis, 475 U.S. 1108; Loretto v Teleprompter Manhattan CATV 
Corp., 58 NY2d 143), the Court bypasses appellants' equal protection 
argument by holding that Penal Law sec. 245.01 simply does not apply 
"in these circumstances." That maxim is unhelpful here, however, 
since both the language and the history of Penal Law sec. 245.01 
demonstrate quite clearly that the conduct with which appellants 
were charged is precisely the type of behavior that the Legislature 
intended to outlaw when it enacted Penal Law sec. 245.01. Thus, 
appellants' constitutional equal protection claim cannot be avoided 
and the only relevant legal maxim is the one that demands proof by 
the State that a classification based on gender be substantially 
related to the achievement of an  [*5]   important governmental 
objective (e.g., Caban v Mohammed, 441 U.S. 380, 388, 393; People v 
Liberta, 64 NY2d 152, 168). Since that standard has not been 
satisfied here, I would hold that, as applied in these 
circumstances, Penal Law sec. 245.01 is unconstitutional and, for that 
reason, the charges against appellants should have been dismissed.
 
   Appellants and the five other women who were arrested with them 
were prosecuted for doing something that would have been 
permissible, or at least not punishable under the penal laws, if 
they had been men -- they removed their tops in a public park, 
exposing their breasts in a manner that all agree was neither lewd 
nor intended to annoy or harass. As a result of this conduct, which 
was apparently part of an effort to dramatize their opposition to 
the law, appellants were prosecuted under Penal Law sec. 245.01, which 
provides that a person is guilty of the petty offense of "exposure" 
when he or she "appears in a public place in such a manner that the 
private or intimate parts of his [or her] body are unclothed or 
exposed." The statute goes on to state that, for purposes of this 
prohibition, "the private or intimate parts  [*6]   of a female 
person shall include that portion of the breast which is below the 
top of the areola." n1 The statute thus creates a clear gender-based 
classification, triggering scrutiny under equal protection 
principles (see, Craig v Boren, 429 U.S. 190).
 
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    n1 Public exposure of a female's breast for the purposes of 
breastfeeding infants or "entertaining or performing in a play, 
exhibition, show or entertainment" is expressly excluded from the 
statutory prohibition.
 
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   The majority has attempted to short-circuit this equal protection 
inquiry by holding that Penal Law sec. 245.01 is inapplicable to these 
facts. However, apart from a cryptic reference to People v Price (33 
NY2d 831), which the majority admits involved a different statute 
and rationale, no explanation is offered as to why this facially 
applicable statute should not be applied here or what specific 
factor differentiates these circumstances from those in which the 
statute was intended to apply.
 
   Price is inapt in this context because  [*7]   it involved the 
predecessor to the current Penal Law sec. 245.01 (L 1967, ch 367, sec. 1, 
amended L 1970, ch 40, sec. 1, repealed L 1983, ch 216, sec. 1), which was 
entitled "exposure of a female" and, as the majority acknowledges, 
"was aimed at discouraging ' topless'  waitresses and their 
promoters" (People v Price, supra, at 832; see, Donnino, Practice 
Commentary, McKinney's Consol Laws of NY, Book 39, Penal Law sec. 
245.01, at 299-300). Given that purpose, it made sense for the Court 
to hold in Price that the statute "should not be applied to the 
noncommercial, perhaps accidental, and certainly not lewd, exposure 
alleged" in that case (33 NY2d, at 832). n2
 
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    n2 Significantly, the allegation in Price was that the defendant 
had been observed on a public street wearing a fishnet pullover 
which left portions of her breasts visible, prompting the Court to 
observe that, absent certain conditions, "legislation may not 
control the manner of dress" (33 NY2d, at 832). That consideration 
is obviously not relevant here, where appellants' conduct was 
obviously intended as a political, rather than a fashion, statement.
 
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- - - - - - [*8]
 
   In contrast, the current version of Penal Law sec. 245.01, which was 
adopted in 1983 to replace the statute at issue in Price (L 1983, ch 
216, sec. 1), was specifically intended to expand the reach of the 
"public exposure" prohibition. The new provision was aimed at 
filling a gap resulting from the fact that the existing law 
prohibited women from appearing  topless  in public but contained no 
prohibition against either men or women appearing bottomless in 
public places (Bill Jacket, L 1983, ch 216, Governor's Approval 
Memorandum). The explicit purpose of the new law was to protect 
parents and children who use the public beaches and parks "from the 
discomfort caused by unwelcome public nudity" (id.; accord, Bill 
Jacket, L 1983, ch 216, Sponsors' Memorandum re A-5638; id., Letter 
dated May 31, 1983 from Assembly Member G.E. Lipshutz to Governor 
Cuomo re: A-5638). Simply put, the focus of the legislation was to 
proscribe nude sunbathing by ordinary citizens (see, People v 
Hollman, 68 NY2d 202). It thus cannot seriously be argued that the 
present version of Penal Law sec. 245.01 was intended to be limited, as 
its predecessor may have been, to commercially-motivated conduct.
 
   Nor   [*9]   can it be argued that Penal Law sec. 245.01 was 
intended to be confined to conduct that is lewd or intentionally 
annoying. First, there is absolutely no support in the legislative 
history for such a construction. Second, a construction of Penal Law 
sec. 245.01 requiring lewdness would be of highly questionable 
validity, since it would render Penal Law sec. 245.00 [prohibiting the 
exposure of "intimate parts" "in a lewd manner"] redundant (see, 
Statutes, McKinney's Consol Laws of NY, Book 1, sec. 98 ["all parts of 
a statute must be harmonized * * * and effect and meaning must * * * 
be given to the entire statute"). Finally, whatever the Court may 
have said about the limitations of the predecessor provision (see, 
People v Price, supra), this Court has already applied the current 
version of Penal Law 245.01 to the public exposure of a person's 
"intimate parts," even where the conduct was merely an expression of 
a personal philosophy or a simple effort to "enhance * * * comfort 
[or] acquire an even tan" (People v Hollman, supra, at 206). Our 
analysis in People v Hollman (supra), thus plainly belies the 
limiting construction the majority now seems to   [*10]   adopt.
 
   Accordingly, there is simply no sound basis for construing Penal 
Law sec. 245.01 so as to be inapplicable to the deliberate, 
nonaccidental conduct with which appellants were charged. The 
Court's reliance on the "presumption of constitutionality" in these 
circumstances is thus nothing more than an artful means of avoiding 
a confrontation with an important constitutional problem. While it 
is true that statutes should be construed so as to avoid a finding 
of unconstitutionality if possible (Statutes, supra, sec. 150c, at 
321), courts should not reach for strained constructions or adopt 
constructions that are patently inconsistent with the legislation's 
core purpose (see, People v Dietze, 75 NY2d 47, 52- 53; cf., People 
v Mancuso, 255 NY 463, 474). In doing so here, the majority has gone 
well beyond the limits of statutory construction and has, in effect, 
rewritten a statute so that it no longer applies to precisely the 
conduct that the Legislature intended to outlaw.
 
   The equal protection analysis that the majority has attempted to 
avoid is certainly not a complex or difficult one. When a statute 
explicitly establishes a classification based on gender,   [*11]   
as Penal Law sec. 245.01 unquestionably does, the State has the burden 
of showing that the classification is substantially related to the 
achievement of an important governmental objective (e.g., Caban v 
Mohammed, supra at 388, supra; Craig v Boren, supra, at 197; People 
v Liberta, supra, at 168). The analysis may have been made somewhat 
more difficult in this case because of the People's failure to offer 
any rationale whatsoever for the gender-based distinction in Penal 
Law sec. 245.01. Nonetheless, in the absence of any discussion by the 
People, the objective to be achieved by the challenged 
classification can be readily identified.
 
   It is clear from the statute's legislative history, as well as 
our own case law and common sense, that the governmental objective 
to be served by Penal Law sec. 245.01 is to protect the sensibilities 
of those who wish to use the public beaches and parks in this State 
(People v Hollman, supra, at 207; see, Bill Jacket, L 1983, ch 216, 
Governor's Approval Memorandum, supra; id., Sponsor's Memorandum, 
supra; id., Letter from Assembly Member G.E. Lipshutz to Governor 
Cuomo, supra). And, since the statute  [*12]   prohibits the public 
exposure of female -- but not male - - breasts, it betrays an 
underlying legislative assumption that the sight of a female's 
uncovered breast in a public place is offensive to the average 
person in a way that the sight of a male's uncovered breast is not. 
It is this assumption that lies at the root of the statute's 
constitutional problem.
 
   Although protecting public sensibilities is a generally 
legitimate goal for legislation (see, e.g., People v Hollman, 
supra), it is a tenuous basis for justifying a legislative 
classification that is based on gender, race or any other grouping 
that is associated with a history of social prejudice (see, 
Mississippi Univ. for Women v Hogan, 458 U.S. 718, 725 ["care must 
be taken in ascertaining whether the statutory objective itself 
reflects archaic and stereotypic notions"]). Indeed, the concept of 
"public sensibility" itself, when used in these contexts, may be 
nothing more than a reflection of commonly-held preconceptions and 
biases. One of the most important purposes to be served by the equal 
protection clause is to ensure that "public sensibilities" grounded 
in prejudice and unexamined stereotypes  [*13]   do not become 
enshrined as part of the official policy of government. Thus, where 
"public sensibilities" constitute the justification for a 
gender-based classification, the fundamental question is whether the 
particular "sensibility" to be protected is, in fact, a reflection 
of archaic prejudice or a manifestation of a legitimate government 
objective (cf., People v Whidden, 51 NY2d 457, 461).
 
   Viewed against these principles, the gender-based provisions of 
Penal Law sec. 245.01 cannot, on this record, withstand scrutiny. 
Defendants contend that apart from entrenched cultural expectations, 
there is really no objective reason why the exposure of female 
breasts should be considered any more offensive than the exposure of 
the male counterparts. They offered proof that, from an anatomical 
standpoint, the female breast is no more or less a sexual organ than 
is the male equivalent (see, e.g., J McCrary, Human Sexuality [1973] 
141). They further contend that to the extent that many in our 
society may regard the uncovered female breast with a prurient 
interest that is not similarly aroused by the male equivalent (but 
see Kinsey, Sexual Behavior in the Human Female [1953] 586-587; 
[*14]   Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman, 
Note on Males' and Females' Preference for Opposite-Sex Body Parts, 
38 Psychological Reports 485-486), that perception cannot serve as a 
justification for differential treatment because it is itself a 
suspect cultural artifact rooted in centuries of prejudice and bias 
toward women. Indeed, there are many societies in other parts of the 
world -- and even many locales within the 
 
United States -- where the exposure of female breasts on beaches and 
in other recreational area is commonplace and is generally regarded 
as unremarkable. n3
 
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    n3 Interestingly, expert testimony at appellants' trial 
suggested that the enforced concealment of women's breasts 
reinforces cultural obsession with them, contributes toward 
unhealthy attitudes about breasts by both sexes and even discourages 
women from breastfeeding their children.
 
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    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), and twenty-two states specifically confine their statutory 
public exposure prohibitions to uncovered genitalia. n4
 
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    n4 See, Alaska Stat sec. 11.41.460; Cal Penal Code Ann sec. 314 West; 
Col Rev Stat sec. 18-7-302; Idaho Code sec. 18-4104; Iowa Code sec. 709.9; 
Kan Stat Ann sec. 21-4301; Ky Rev State Ann sec. 510-150; Me Rev Stat Ann 
17-A, sec. 854; Mo Rev Stat sec. 566-130; Mont Code Ann sec. 45-5-504; Neb 
Rev Stat sec. 28.806; NH Rev Stat Ann sec. 645.1; ND Cent Code sec. 
12.1-20-12.1; NM Stat Ann 30-9-13; Okla Stat, tit 21, sec. 1021; Or Rev 
Stat sec. 163.465; RI Gen Laws sec. 11-45.1; SD Codified Laws Ann sec. 
22-24-1; Tenn Code Ann sec. 39-13.511; Tex Penal Code Ann sec. 21.08; Utah 
Code Ann sec. 76-9-702; Wisc Stat sec. 944.20; see also Robins v Los 
Angeles County, 56 Cal Rptr 853.
 
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   The People in this case have not refuted  [*16]   this evidence 
or attempted to show the existence of evidence of their own to 
indicate that the non-lewd exposure of the female breast is in any 
way harmful to the public's health or well being. Nor have they 
offered any explanation as to why, the fundamental goal that Penal 
Law sec. 245.01 was enacted to advance -- avoiding offense to citizens 
who use public beaches and parks -- cannot be equally well served by 
other alternatives (see, Wengler v Druggists Mut. Ins. Co., 446 U.S. 
142, 151-152; Orr v Orr, 440 U.S. 268, 281-283).
 
   In summary, the People have offered nothing to justify a law that
discriminates against women by prohibiting them from removing their 
tops and exposing their bare chests in public as men are routinely 
permitted to do. The mere fact that the statute's aim is the 
protection of "public sensibilities" is not sufficient to satisfy 
the state's burden of showing an "exceedingly persuasive 
justification" for a classification that expressly discriminates on 
the basis of sex (see, Kirchberg v Feenstra, 450 U.S. 455, 461). 
Accordingly, the gender-based classification established by Penal 
Law sec. 245.01 violates appellants' equal  [*17]   protection rights 
and, for that reason, I concur in the majority's result and vote to 
reverse the order below.
 
Order reversed and informations dismissed in a memorandum. Chief 
Judge Wachtler and Judges Kaye, Hancock and Bellacosa concur. Judge 
Titone concurs in result in an opinion in which Judge Simons concurs.
 
   Decided July 7, 1992
 

-- 
O net, thou art sick.  The invisible newbie that lies in the night in
the howling subject header has found out thy bed of followup joy, and
his dark secret cross-posting doth thy life destroy.  (Film at 11.)
	Mark Eckenwiler    eck@panix.com    ...!cmcl2!panix!eck
Newsgroups: misc.legal,soc.men,soc.women