New Hampshire Court Finds No Unconstitutional Gender Bias in Public Nudity Laws

by | February 27, 2019

State v. Lilley, 2019 (N.H. 2019)

Officers were summoned to a lakefront beach park for complaints of a topless woman. When they arrived, they found shirtless, self-proclaimed “free the nipple” activist Ginger Pierro “performing yoga on the beach.” She reported several persons violently harassed her, but “out of everybody on the beach, there were only actually a handful that were upset.” The officers asked her to put on a shirt or bathing suit top, but she refused, and was arrested. A few days later, two other women, Kia Sinclair and Heidi Lilley, went topless to the same beach. When officers responded to complaints, the women expressed they were protesting Pierro’s arrest.

The three women were convicted of public nudity and appealed to the New Hampshire Supreme Court. They argued criminalizing the exposure of their breasts was unconstitutional, “because, even though both men and women have nipples, the ordinance does not treat men and women equally.” In a lengthy decision, accompanied by an equally lengthy dissent, the court upheld their convictions.

“The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”

The court held the ordinance did not classify the criminal conduct based on gender. “Nature, not the legislative body, created the distinction between that portion of a woman’s body and that of a man’s torso.” The court also held the women’s arrests did not violate their free speech rights. “The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity.”

The court observed society generally considers—at least for now—the female breast to be an erogenous zone. Exhibit A could be the general lack of brouhaha when Adam Levine of Maroon 5 stripped to his tattooed, naked torso during this year’s Super Bowl halftime show, contrasted with the outrage over Janet Jackson’s “wardrobe malfunction” in the 2004 halftime show. Pierro claims the nipple-nudity distinction is a double standard that violates the Constitution. Pierro and her co-defendants are considering petitioning the Supreme Court to review their convictions.

In the meantime, officers can safely exercise discretion to arrest topless women in clearly public places. Even so, perhaps the discretion is best exercised only after a complaint from the public. Officers should also be particularly slow to enforce public nudity ordinances against a breast-feeding mother, as such action brings a host of other constitutional challenges (and just isn’t appropriate, anyway).

Pierro’s conviction stands, but she may have bigger problems: Not long after her arrest for public nudity, she was arrested for carrying a concealed gun without a license and bail jumping – both felonies.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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