Conference moira::naturism

                      -{ ? ? }-                
       Well what happen on the 21 of June in Rochester,  did TopFree
         win out er er make a pointe..    WIZzard

    Dear Wizard:
    
    	June 21, has not yet arrived !!  Hang on for a few days.
    
    Darrell

    The following article is from _Bare in Mind_, September 1988, where it
    was reprinted from _Naturists Rochester News_.

    ======================================================================

    ROCHESTER NEW YORK:
    TOPFREE PICNIC AT THE PARK NO PROBLEM

    This year, more than forty women were topfree during a five-hour picnic
    in Genesee Valley Park.  The weather cooperated with a hot, humid day
    on which shirts were uncomfortable on women and men.  Activities at the
    picnic included volleyball, softball, frisbee, canoeing on the Genesee
    River and eating a lot of great food.  Laine Dexter even wrote and
    recorded a song entitled "I'd Rather Be In Rochester -- Topfree" for
    the occasion.  Two of the three television stations that provided
    extensive reports on the picnic featured women singing and dancing to
    the recording.  Wire Service reports of the picnic resulted in news
    stories in papers across the country and many requests for guest spots
    on radio talk shows.

    The growing acceptance of topfree equality was seen in the local
    reaction.  The police stopped by the picnic and left without comment.
    Joggers and bicyclists passed by, often with a friendly wave, but no
    other notice.  An extremely positive editorial was printed in City
    Newspaper.  Women have increasingly been topfree individually and in
    small groups in area parks on hot days without difficulty.  New York
    State's gender discriminatory _Exposure of a Person_ law may become
    ineffectual through lack of enforcement although efforts to change the
    law are still underway.

    Other actions for topfree equality included an educational forum at the
    City School District's Administrative Office attended by over 70 people
    and speeches on the importance of topfree equality before County
    Legislature and City Council meetings.  The educational forum included
    the film, _Killing Us Softly_, dealing with the negative effects of
    advertising's portrayal of women's bodies, a fashion show on changing
    bathing suit styles staged by Ramona Santorelli with modeling of old
    swimsuits for men, talks by individual members of the Coalition for
    Topfree Equality, and much good discussion.

    Preliminary steps are now underway to respond to District Attorney
    Howard Relin's plans to appeal the original _Topfree Seven_ decision.
    For information on current efforts to achieve Topfree Equality or to
    purchase "I'd Rather Be In Rochester -- Topfree" shirts, bumper
    stickers, or buttons, contact Mary Lou Schloss at (716)244-1219.

    ======================================================================

    There is a Topfree Seven Legal Fund for the appeal of the original
    Topfree Seven court case:

    	The Topfree Seven
	237 Vasser Street
	Rochester, NY 14607

    -Neil

    Reprinted from _Bare in Mind_, volume 17 number 4 (April 1989):

    ----------------------------------------------------------------------

		       FOURTH ANNUAL TOPFREE PICNIC
                       SCHEDULED FOR JUNE 24, 1989

    The Fourth Annual Topfree Equality Picnic will be held Saturday, June
    24th, at 11 a.m. on Durand-Eastman Beach in Rochester, New York.  The
    event is sponsored by the Coalition for Topfree Equality with active
    support from Naturist Rochester.

    The first year's picnic received widespread national publicity,
    including an appearance on the Donahue program, after seven women were
    arrested for removing their shirts in a public park.  The women were
    acquitted on free speech grounds, but the county is appealing the
    decision.  The second picnic involved 25 women; the third picnic
    involved over 40 women.  There were neither arrests nor harassment
    during the last two picnics.  The women and their male supporters had
    enjoyable picnics in public parks with volleyball, softball, Frisbee
    and great food.

    This year's picnic will be on a sandy beach on Lake Ontario.  Another
    great picnic is expected.  Rain date is Sunday, June 25th.

    Those of you too far from Rochester to participate directly are
    encouraged to coordinate Topfree events in your own area.  It would be
    very effective if this became a nationwide activity.  Make your plans
    now.

    For further information and ideas on how you can help, please contact
    Mary Lou Schloss at Naturist Rochester, 237 Vassar St., Rochester, NY
    14607, or call her at (716)244-1219.

    The following is reprinted from _Bare in Mind_, Volume 17 # 8 (August
    1989), where it was reprinted from _Naturist Rochester News_.

	-Neil

    ------------------------------------------------------------------------

		       BARE BREASTS -- TEN ARRESTS

    This year, the Coalition for Topfree Equality organized two actions, a
    June 24th picnic on Durand Eastman Beach and a July 15th picnic and
    press conference in Seneca Falls, New York.

    On the beach, over 75 people including more than 40 topfree women swam,
    played frisbee and bocce ball, and shared a potluck picnic for over two
    hours.  The mood was festive.  Other people on the beach went on with
    their activities, obviously undisturbed by the picnic.  There were no
    voyeurs or negative comments.  The atmosphere was similar to the
    atmosphere at picnics in Genesee Valley Park the last two years.  The
    picnic was a wonderful, relaxing experience until sheriffs deputies
    arrived to arrest ten women who chose to remain topfree after police
    ordered "the girls" to cover their chests.

    The situation in Seneca Falls was quite a contrast.  When the first
    four women and their families arrived, the very small park was full of
    people including many police officers.  Both police and other people
    could be overhead discussing the arrival of the topfree women.  The
    action was planned to coincide with the annual celebration of the first
    _Women's Rights Convention_ held in Seneca Falls in 1848.  An official
    of the Celebration planning group approached the women to discuss where
    to hold the picnic.  A corner of People's Park called, appropriately,
    Elizabeth Cady Stanton Park, was mutually agreed upon since it was a
    short distance away from the center of the crowd (Stanton was the
    author of the _Declaration of Sentiments_, a document coming out of the
    1848 Convention which is usually considered the start of the women's
    rights movement in this country.  The women spread a couple of blankets
    and sat down with their families to enjoy a picnic. The area was soon
    surrounded by spectators and police waiting for a show.  Many more
    women and other supporters gradually arrived to reinforce the group,
    bringing the number to over 50.  About 10 women from the nearby Women's
    Peace Encampment were particularly welcome.  The women soon decided not
    to remove their shirts to provide the anticipated performance, the
    atmosphere was not conducive to a relaxing picnic.

    As the women and their supporters ate and made plans, the surrounding
    crowd eventually became bored and thinned considerably.  The women
    decided to take charge of the situation by marching two blocks down
    Seneca Falls' Main Street to the National Women's Hall of Fame.
    Seventeen women held a topfree press conference in front of the Women's
    Hall of Fame explaining the importance of the topfree equality issue
    and relating it to the historic events in Seneca Falls.  Some
    photographs were taken which should prove to be classics.  The police
    chose to make no arrests.  The initial press coverage was excellent
    although at this writing it's too soon to assess further press reaction.
    It's ironic that a relaxing picnic on the beach led to arrests while
    the anything-but-relaxing action in Seneca Falls remained arrest free.

    The women arrested at Durand Eastman Beach were:  Susan David, Lynn
    Gallo, Nina Leibowitz, Gail Neisner, Tierney O'Brien-Dovan, Kathie
    Reilly, Ramona Santorelli, May Lou Schloss, and Sarah Wells.

    The women were harassed after the arrest by spending an hour in the
    back of a locked, hot paddy wagon with exhaust fumes blown in and
    another hour in the city lockup.  One woman was threatened with her
    baby being taken away and placed in foster care for the weekend.
    Several of the women have filed a complaint with the Police Review
    Board since the usual treatment for a person accused of a violation
    (such as a speeding or parking ticket or jaywalking) is issuance of an
    appearance ticket on the spot.  The women were finally given appearance
    tickets and released after three men _gave up their shirts_ in the
    lobby of the Public Safety Building so that three women who had no
    shirts with them would have something to wear.  Thus, the police asked
    three men to be topfree in a public building so the women would not be
    topfree.

    All the women were charged with Exposure of a Person, a violation, and
    entered pleas of "not guilty" at their arraignment in City Court on
    June 27 before Judge John Manning Regan.  This year the women will base
    their case solely on the law being unconstitutional since it violates
    the equal protection clause of the U.S. and N.Y. State constitutions.
    The law requires women, but not men, to cover their chests in public.
    The only exceptions to the law are that women's chests may be exposed
    to nurse infants or to entertain -- such as women dancing topless in a
    bar to sell drinks to men.  Four years ago, charges against the Topfree
    Seven were dismissed on first amendment Freedom of Speech grounds.
    This year, that approach will not be used so that the important equal
    rights for women case can be heard.  The women are scheduled in court
    for Preliminary motions on August 1.  The trial will probably take
    place sometime in the fall.  The women will be represented by private
    attorney, Sharon Sayers and public defender, Jeff Wicks.  Mary Lou
    Schloss will represent herself to allow added flexibility in
    proceedings.

    This years beach picnic has received extensive press coverage
    including radio talk shows from Seattle, Phoenix, Denver, West Palm
    Beach, Washington, D.C. and New York City, national wire service
    reports, several local television station interview shows and
    supportive editorials nationwide (Rodger Libby in USA Today and Mike
    Royko, syndicated) and in City Newspaper.  Of course, all the local
    media supported our activities, WROC-TV (Rochester Channel 8) newscasts
    included shots of women's topfree breasts naturally.  They received no
    complaints.

    All this gives the women the opportunity to explain not only the
    inequality of the law, but also the damaging effects of requiring women
    to conceal their breasts.  Women grow up not knowing what normal
    breasts look like and dissatisfied with their own.  Men and women learn
    to view breasts as sex objects causing problems in relationships and
    women's self image.  Women avoid breastfeeding their infants; breast
    augmentation is now the leading cosmetic surgery for women; women avoid
    checking their breasts for cancer.  More mature areas of the world
    where breasts are not hidden have gone beyond this obsession with
    breasts and the related problems.

    Women in Rochester have been increasingly topfree on beaches and in
    parks with no problem.  Recently Ramona Santorelli rode her bicycle
    topfree in the southeast section of Rochester for 3 hours with no
    negative remarks or catcalls.  _Times are changing_.

    re .6:
    
    We have a deep rooted fear of change. A lot of people need time to
    think about it.
    
    						John.

This in rec.nude:

From: [email protected] ("Paul Fortman")
Subject: The right to be topless
Date: 14 Nov 91 05:17:00 GMT


I just saw on the news tonight that the "topless ten" in
New York were cleared by a Rochester judge who said that
a woman's chest is no different than a man's chest, and
that the U. S. and the New York constitutions protect
a woman's right to be topless.

It's nice to know that there is at least one judge with
a brain.  It's also good to see this on National News.


--Paul

      [email protected]  [email protected]
          [email protected]  [email protected]

           One has a moral responsibility to disobey unjust laws.
                        --Dr. Martin Luther King, Jr.

    re-.1
    It is interesting to note that the judge was a woman.
    
    -j

re: .9
>    It is interesting to note that the judge was a woman.

That's great (if true).  Although not all women/men are the same,
in general, the sexes do seem to have a different perspective.  I
think it's going to help a lot more than naturism as more and more
women (and other under-represented groups) gain positions of power 
in our society.  My personal gratitude to the feminists and others 
who helped make this societal change possible!

Kerry

Rochester, NY (AP) -- A prosecutor said Wednesday he would appeal a
judge's ruling that women's breasts are "physiologically similar" to
men's and therefore should be allowed to be bared in public.

"Community standards are that people want people clothed in public
places," Monroe County District Attorney Howard Relin said.  "To
argue that male and female breasts are the same certainly is not
the community standard that I'm aware of."

County Judge Patricia Marks on Tuesday reversed the convictions of
a group of women, known as the Topfree 10, who were arrested in 1989
for taking off their shirts while pickicking in a city park.

Marks ruled that a state law barring women from baring their breasts
in public is unconstitutional because it violates women's right to
equal protection.

"Male and female breasts are physiologically similar except for
lactation capability," Marks wrote.  "Therefore, it is apparent that
the N.Y. law with the gender based classification does not serve the
legitimate government interest."

[Actually, it was my understanding that men's breasts also have
 lactation capability, if they are properly "activated" -- Carl]

Re: .10

I certainly hope it's a toehold for further women's equality, but
with current prevailing (note I did not say majority) moral attitudes,
I would not be surprised if the appeal was upheld and this gutsy
judge was discredited.

> My personal gratitude to the feminists and others 
> who helped make this societal change possible!

Thanks, but we're not out of the woods yet!

Carl

    I`m not a regular reader here but I thoyght you all might be
    intersested.
    
    It appearts that the N.Y. State Supreme Court has thrown out a case 
    against two women who went topless in Rochester. It is now legal in the
    state of N.Y. to be topless.
    
    

From: [email protected] (UPI)
Subject: Court says women may go topless in public

	ALBANY, N.Y. (UPI) -- Women were free to go topless on New York state
beaches and other public places Wednesday as result of a ruling by the
state's highest court.
	The Court of Appeals ruled unanimously Tuesday to dismiss criminal
charges against seven Rochester women arrested in a public park in 1986.
The women, who came to be known as the Top Free Seven, were charged with
exposure after removing their shirts at a picnic.
	Herald Price Fahringer, an attorney representing the women, called
the decison a ``triumph for women's rights.''
	Mary Lou Schloss, an organizer of the Rochester picnic that created
the controversy, said, ``Women will now have the right to choose, just
like men, when and where they can take their shirts off.''
	Despite the ruling, a majority of the court declined to declare the
law against bare breasts unconstitutional, holding that it might be
applied to public lewdness.
	The court ruled that a statute which outlaws public display of
women's breasts ``below the top of the areole'' cannot be applied to 
``noncommercial'' and ``not-lewd exposure.''

Associated Press-- Topless Protest                      07-07 10:04a
                                                         ----------------
                                                         ! GENERAL NEWS !
-------------------------------------------------------------------------
  Two women who went topless to protest state law are cleared of charges.
-------------------------------------------------------------------------

     (Albany, New York) -- New York's highest court has thrown out
the charges against two women who were charged with violating the
state's nudity laws by baring their breasts in public.
     The women were among the so-called "Topfree Seven" who
annually go topless in public, to protest a state law that they say
discriminates against women.
     The court said the law against public exposure of a woman's
breast shouldn't be applied to what it termed the
"non-commercial" and "certainly not lewd exposure" in this
case.
     However, the court refused to declare the state's law
unconstitutional -- even though two of the court's six judges said
it should do so.

    
    From the Long Island edition of Newsday, 7/8/92, page 18
    --------------------------------------------------------------------------
    
    TOPLESS SUNBATH OK
    
    New York's top court yesterday threw out charges that two women
    violated state nudity laws by baring their breasts in public, but
    refused to declare the law unconstitutional.
    
    The unanimous Court of Appeals decision, in effect, legalizes topless
    sunbathing for women in parks and beaches across New York State,
    lawyers for both sides said.
    
    The court ruled that charges against two of Rochester's "Topfree Seven"
    should be dropped. The women annually go topless in public to protest
    the nudity law, which they say discriminates against women.
    
    In an unsigned opinion, the court said the 1983 law banning the public
    exposure of a woman's breast "should not be applied to the
    noncommercial, perhaps accidental, and certainly not lewd, exposure"
    that allegedly took place in the protest. The intent of the law, the
    court said, was to discourage topless waitresses and their promoters.
    
    Defendants Mary Lou Schloss and Ramona Santorelli were among seven
    women arrested in 1986 for going topless at a picnic in Rochester park.
    The other women declined to pursue their cases in court.
    
    --------------------------------------------------------------------------
    
    My opinion:
    
       It won't end here.
    
       The court didn't rule the 1983 law as unconstitutional, merely that
    it shouldn't be applied in this particular case. While I'm sure there
    won't be many arrests made at textile beaches of topless women, the
    courts appear to have left open the interpretation/application of the
    law to other cases.
    
       In addition, it's not clear from this article (or the others posted)
    whether local ordinances relating to topless or nude sunbathing can
    superscede the State law that was being tested. (Without seeing the
    wording of the 1983 law, I can only assume from the article above that
    the law refers somehow to topless waitressing, and not to beach attire.
    Given that, any local or other State law specifically disallowing
    topless or nude sunbathing could still theoretically be enforced.)
    

    RE.16 last para.

    You are absolutely right about local ordinance superseding state
    ordinance. In many cases the state laws do allow the local authority
    having jurisdiction ( town, county, parish ) to accept or disallow
    all or any part of the law, provided it is a CIVIL and not criminal
    issue. Traffic (ie. speed, parking), Leash laws and zoning ordinances
    are the most common that are over ridden. The laws surrounding nudity can
    be interpreted either way unless they are very specific and few are.

    The best bet is to check with the local authority when in doubt. The
    only truly safe time or place (in Public) is at an established location
    when in the company of those who KNOW the area.

    Hooray for the topfree seven and all others this affects.

>    superscede the State law that was being tested. (Without seeing the
>    wording of the 1983 law, I can only assume from the article above that
>    the law refers somehow to topless waitressing, and not to beach attire.
    
    Actually, my understanding is that the law in question is New York's
    "Exposure of a Person" law; that this is one of the very few laws in
    the country that specifically makes simple (non-lewd) nudity a crime
    in and of itself; that the law defines exposure of the female breast
    to be nudity; and that it was passed to make it possible to suppress
    beach nudity.
    
    The Naturist Action Committee and a coalition of New York naturist
    groups are actively lobbying for repeal of the Exposure of a Person
    law, as discussed at some length in the July _Nude and Natural
    Newsletter_.
    
    	-Neil

Crossposted from the internet CO DIGEST:

----------------------------------------------------------------------------

  From the "New York Daily News"
         By Ben Shaykin  (staff writer)
  "Betsy gives a bra-vo  to bare-breast ruling"

   The Director of city parks yesterday said "its terrific" that women
   can bare their breasts now in public without fear of arrest.

   "I don't intend to take advantage of the ruling myself, but I think
   its terrific," said Parks Department chief Betsy Gotbaum.

   The state Court of Appeals on Thuesday tossed out criminal charges
   against several female activists arrested in a Rochester park in
   1986 for removing their tops.

    Women can go topless in public places in New York State as long
    as their behavior is not lewd or for commercial purposes, the
    court said.

    At Orchard Beach in the Bronx yesterday, there was enthusiasm for
    bare breasts, but not from bikini-clad Louis Addeff, 72 or his
    wife Josephine, 73.

    The sunbathing couple called the ruling bunk. "Nature made men and
    women in certain ways," said the ex-Marine and retired city worker.
    "The next thing you know, men going to go bottomless, and that's
    wrong."
    "Well said!" said Mrs. Addeff.
    Lifegaurd David Bow had no problem with above-the-waist nudity.
    "If women fell comfortable with it, it doesn't bother me," he
    shrugged.
    "I would go topless myself," said Josette Denis, 20, "but the men
    looking and their remarks world bother me - they have no respect."
    John Bucknavage, 35, had reasons for supporting public nudity.
    "You have to demystify the facsination with women's breasts.  It
    is only in America where women can't go topless.  The ruling will
    help get rid of a lot of oppression," he said.
  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
  From the "New York Post"
    "IT WASN'T THE BREAST OF TIMES"
         By Marianne Goldstein and Ransdell Pirson in New York
            and Chris McKenna in Albany

  Can they or can't they?
  No topless suncathers were spotted at the city's beaches or public
  pools yesterday, despite Tuesday's court ruling allowing women to
  frolic or sun themselves topless in the state's parks and beaches.
  There was confusion whether  the ruling even applied to women walking
  on public streets.
  It appeared a further court test would be needed to clarify the
  extent of the ruling, whichsaid it was discriminatory for men -
  but not women - to be allowed to go topless.
  State park police and workers have been advish that regulations
  against toplessness are suspended, pending a formal a formal opinion
  from Attorney General Robert Abrams, a democratic candidate for U.S.
  Senate.
  Until then, park police will ask womento put their tops back on,
  but won't take any action if they refuse, said lawyer Lloyd Abrams
  of the state Parks department.
  a sharp-eyed post photographer visiting Jones Beach yesterday did
  spot one topless women.
  The state Court of Appeals ruling, which threw out convictions
  against a group of Rochester women who held annual topless picnics,
  says that women can take their tops off in public for recreational
  or political purposes.
  There were no topless sightings in Rochester yesterday, said one
  of the  local official, and police there "will not take any action"
  if any woman go topless.
  And despite the court's decision, bikini tops were securely fastened
  at all the city's 68 public swimming pools.
  The Parks Department spotted nary a nipple yesterday, despite blue
  skies and balmy temperatures.
  "I don't think many women know about the court decision yet,"
  theorized Parks Department Commissioner Betsy Gotbaum, who hailed
  the court's "wonderful" decision.
  But even when word gets out, she predicts few women will take
  advantage of their new-found freedom.
  "We're a quite puritanical society, so I think it will be a long
  time before many women do it.  Maybe just a few here and there,"
  Gotbaum said.
  Modesty also prevailed at the city's beaches yesterday, where tens
  of thousands of women kept their tan lines intact.
  "We must have had 4,000 women here today and I didn't see any
  topless at all - not a one - and I was looking!" said Bernard
  Capizzo a Parks Department employee at Manhattan Beach in Brooklyn.
  Although the ruling is fuzzy on the issue of women who bare all
  "commercially" - for example, at topless dance clubs - a prior ruling
  by the Court of Appeals has held that nude dancing is a procted form
  of expression.

    Haven't really been keeping up with this but I did notice
    that the cable channel CNBC did quite a long segment on this
    topic a few days ago.  Neat to see a balanced (as opposed to
    titillating) treatment of the issue in the mainstream media,
    I was quite surprised.

    Now, if Bill Clinton would only take a stand on the issue...  
    Wonder what Tipper thinks??  ;-)

    gee - it looks like it's okay for a waitress to be topless outside, 
    while enroute to work, but when she gets inside she has to cover the
    nipples because then they become lewd (?!?)
    hmmmm
    dbc
    

    
    Funny this should be the first topic I come to when I open the
    conference.  I read in this week's Boston Phoenix that this weekend 
    is Nat'l Nude Weekend.
    
    Cq

    
       The Democratic Nat'l Convention is going on in NY City this week,
    and lots of the local strip/topless clubs are doing significant
    advertising to lure delegates to their business. Well, given the NY
    State Supreme Court ruling last week on Schloss & Santorelli, the
    following may have been considered inevitable.
    
       On the Channel 5 (WNYW) news last night they had a small blurb
    about three dancers who were riding through Manhattan on one of those
    British-style buses with the open roofs. (The bus had banners on the
    sides advertising some strip club.) The three girls took their bikini
    tops off, but only one was arrested for indecent exposure.
    
       The news didn't elaborate, but my assumption is that only one of the
    three was behaving in a "lewd" manner, and the other two were not. In
    addition, even though all three were advertising for a strip club, the
    act of riding topless is not (I believe) "commercial" since there were
    no "patrons" to speak of, nor were the girls soliciting payment for the
    privilege of viewing them topless.
    
       I've checked today's paper, but haven't seen anything on this yet. I
    wonder if this will turn into another test case? (What was the one girl
    doing that made her action "lewd" or "indecent", that the other girls
    weren't doing?) We'll see what happens.
    
    
    Frank
    

From: [email protected] (Mark Eckenwiler)
Subject: Re: topless in NY state?
Summary: perfectly harmless, according to NY's highest court
Organization: Culturale Elit

In <[email protected]>, [email protected] 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.
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
- - - - - -
 
    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).
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
- - - - - - [*4]
 
    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).
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
- - - - - -
 
    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.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
- - - - - -
 
   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
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
- - - - - -
 
    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.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
- - - - - - [*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
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
- - - - - -
 
    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.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
- - - - - -
 
    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
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - 
- - - - - -
 
    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.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - 
- - - - - -
 
   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    [email protected]    ...!cmcl2!panix!eck

   This article appeared in yesterday's (Thursday, 8/7/92) edition of Newsday
   (a NY/Long Island area newspaper).

     ----------------------------------------------------------------------
    
   {Full color photo shows woman lying on her stomach at beach, and she
   clearly is not wearing to top portion of her bikini. Caption says, "Regina
   Desimone sunbathes topless as Robert Moses State Park yesterday."}

   IT'S TOP PRIORITY
   NY may set up bare sunbathing zones

   By Birgit Brander Rasmussen and Bill Bleyer (Staff Writers)

      While state parks officials investigate creating special areas for
   women to sunbathe topless, Regina Desimone quietly basked in the sun
   yesterday at Robert Moses State Park wearing nothing but a deep tan and
   black bikini bottoms.

      "I think it's ridiculous that it's even an issue," said the 24-year
   old Bay Shore resident.

      Although some beachgoers agreed with Desimone that the issue had been
   "blown out of proportion," most said segregated areas for topless bathers
   was a good compromise.

      "I think they should have a separate area because parents should have
   a choice about whether their kids should be exposed to it," said Loretta
   Dominguez of Lindenhurst while munching french fries on the beach.

      Segregating topless female bathers is one potentially legal response
   to a State Court of Appeals ruling last month that threw out charges
   against two women for baring their breasts in a Rochester park, State
   Attorney General Robert Abrams said in a letter he sent to State Parks
   Commissioner Orin Lehman on Tuesday. Lehman requested the opinion, but
   parks spokeswoman Arelene Post said yesterday no plans had been made yet
   to set up separate topless beaches.

      "What we are doing is basically information gathering, so we can make
   a more reasoned decision," she said.

      "We are basically looking to see what the reaction of our park visitors
   is on both sides of the issue . . . How many people seem to want to go
   topless, and then how many people might feel that makes them uncomfortable?"

      So far, the Rochester ruling has neither generated waves of topless
   bathers nor streams of protest letters. Park employees working the beaches
   this past weekend said they spotted only about a dozen topless women at
   Jones Beach out of 242,000 patrons, accroding to Ronald Foley, regional
   director of state parks. Since the ruling, the office has received 30
   complaints, including a petition signed by 60 people opposed to topless
   sunbathing, Foley said.

      The issue has received wide media attention since the state's highest
   court threw out charges against the two women in Rochester, who had bared
   their breasts to protest the state's nudity law. However, the court
   refused to declare the law unconstitutional as the women had requested.

      The women had claimed New York's law discriminated against women because
   men are allowed to go topless.

      The Court of Appeals decision said the 1983 law banning public exposure
   of the breasts "should not be applied to the noncommercial, perhaps
   accidental, and certainly not lewd, exposure." Two of the six judges said
   the law should be declared unconstitutional.

      The New York City lawyer who represented the women in their legal fight
   said the latest idea from the state parks department is just as dis-
   criminatory as the old law.

      "The whole thrust of the Court of Appeals decision was you can't
   discriminate between men and women," said Herald Price Fahringer. "If
   you want to set aside a part of the parks where men can't take off their
   tops either, that would be fine."

      Gov. Mario Cuomo, in an interview with Albany's WAMC radio station,
   also questioned the state's legal right to impose such restrictions.

      "My first guess on that is if the court said that they have the right
   to go topless, how do you confine them?" Cuomo said. "That's the
   difficulty I have as a lawyer, but I'll wait to see what my parks people
   come up with."

      Mary Lou Schloss, who led the protest that resulted in the July 7
   ruling, said she was certain any move by the state to set up restricted
   areas for topless women would be challenged in court but declined to say
   whether she would be the one to lead such an effort.

      There is still a parks department regulation that prohibits women from
   exposing their breasts, but for now, parks personnel simply ask women
   without tops to cover up. If the women refuse, officials have been told to
   take no further action.

   This story was supplemented by The Associated Press.

     ----------------------------------------------------------------------

    
    
    	Seems like you just can't win.
    
    	I thought part of the ruling was that if the statute has 'gender
    specific' wording (as this law did) that the state had to give a real
    good reason for it. In this case the court decided that the state
    hadn't shown any good reason. 
    
    	Just because some people don't like it , or are offended by it
    doesn't cut it in my book. I also don't think that anyone can prove
    that the sight of naked female breasts will have any harmful affects on
    children.
    
ed

    
    .26> I thought part of the ruling was that if the statute has 'gender
    .26> specific' wording (as this law did) that the state had to give a real
    .26> good reason for it. In this case the court decided that the state
    .26> hadn't shown any good reason. 
    
       That's true, the State must show an "important governmental interest"
    in order for the Court to uphold what would otherwise be an
    unconstitutional statute. And yes, the Court did agree that the State
    didn't make any attempt to show such a governmental interest, so you
    would think the statute would be deemed unconstitutional.
    
       Not!
    
       If you re-read the ruling (posted in .20-something), you'll see that
    there are two opinions. Four of the judges came up with one of them,
    and the remaining two judges came up with the other. All six agreed
    that the State's case against Santorelli and Schloss was invalid.
    
       In the majority opinion, they sought to uphold the constitutionality
    of the statue if they could find a "rational basis" for doing so. What
    they decided was that since the prior version of the law was intended to
    deter indecent, or lewd, exposure, then the current law must also be
    based on the same intent. And since the exposure in the current case
    wasn't lewd or indecent, the majority decided that the current law didn't
    apply either, and they dismissed the State's case.
    
       Therefore, by finding what they considered to be a "rational basis"
    for not applying the statute, the majority didn't even address the
    question of gender-based discrimination in PL 245.01, as written.
    
       In the minority opinion, however, it was argued that Penal Law 245.01
    (the section in question) clearly addressed non-lewd, or casual exposure,
    and therefore *was* applicable. (In fact, as the minority wrote, PL
    245.00 addresses indecent exposure, and 245.01 addresses casual
    exposure. Since 245.00 is clear in its intent to deter indecent
    exposure, the minority argued that 245.01 would be redundant if it also
    were construed to apply to indecent exposure, as the majority decided
    to do. Follow that?) The minority did agree with the defendants and
    argued that the statute was in fact unconstitutional.
    
       Unfortunately (or fortunately) the majority opinion is the one that
    is used as a basis for the final decision. In this case that means that
    the statute *was not* declared unconstitutional, simply not applicable.
    
       But this might actually be good news for us. Since the majority
    decided that the law only applied to lewd or indecent exposure, that
    means that there is currently no law on the books in NY State which
    can be applied to casual exposure of a person. That includes exposure
    of the genitals, breasts, buttocks. So, theoretically, all State parks,
    beaches, streets, and other "public places" must allow total nudity.
    
       It's awfully tempting to test the Appeals court's interpretation of
    the law. Know any lawyers that do pro bono work?
    
       On to the other issue, that of designating areas for topless
    sunbathing. This can't legally happen, for a few reasons.
    
       First, if the State decides to designate areas where women can go
    topless, but doesn't restrict men from being topless in other areas,
    then the regulation would include gender-based discrimination on its
    face, and could not be upheld in court. (Unless they conveniently find
    some "rational basis" for not applying the law again.)
    
       Second, in the minority opinion a reference was made to People v
    Hollman. In that case the State decided that a separate nude sunbathing
    area of Riis Park should be eliminated, and they stated that the
    "important governmental interest" was one of public safety.
    
       The State argued that by having a nude sunbathing area, other beach
    users were not venturing beyond the main beach area. That in turn, they
    argued, caused overcrowding and unsafe conditions. Therefore, since it
    is in the State's interest to protect the public safety, they argued that
    eliminating the nude beach area would reduce the overcrowding of the
    main beach, since people would then venture to other areas of the beach.
    
       So, in People v Hollman, the State argued against separate bathing
    areas for a class of sunbathers. Then how can they now argue in favor
    of those same separate areas? Some consider that the hypocritical
    nature of such a decision would make it impossible to separate the
    beaches again.
    
       Thirdly, the minority did suggest that "protecting the public
    sensibilities is  a generally legitimate goal for legislation", and the
    State may seek to use that as a basis for separate bathing areas.
    However, the minority also referenced Mississippi University for Women
    v Hogan, where it was decided that "care must be taken in ascertaining
    whether the statutory objective itself reflects archaic and stereotypic
    notions." They further agreed, based on the defendant's witnesses who
    testified to the similarity of male and female breasts, that the claim
    of women's breasts being sexually alluring "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."
    
       So the State has to come up with some other reason to justify
    separate areas for topless (and/or nude) sunbathers. I'd say they're
    going to be stuck.
    
       Incidentally, NY Penal Law, Article 245, is broken down into a bunch of
    different sections. Section 245.00 deals with indecent exposure, 245.01
    deals with casual exposure (as written), and other sections deal with
    people who make others expose themselves, or provide a facility for
    people to expose themselves (such as topless bars and their owners). I
    wonder if the State would be guilty of violating a section of Article
    245 if it provides separate beach areas for topless sunbathers?
    
    .26> I also don't think that anyone can prove that the sight of naked
    .26> female breasts will have any harmful affects on children.
    
       Not only can't it be proved, but that is already part of NY law. I
    noticed a reference to some cases which were along those lines. The
    first stated that casual nudity in and of itself is not obscene or
    indecent, and the other furter stated that casual nudity is not
    rendered indecent simply because a minor is present. I have the actual
    court references at home, if I remember I'll look them up and post.
    
    
    Frank