Indecent Exposure

Lis Wiehl

It's summertime again, and you know what that means — baseball, barbecue and bare breasts. (Is it me, or does something about the summer always seem to create a surge in breast-related news?)

It is not yet July, and already, a female sheriff's deputy in Arkansas has been accused of going topless at a campground and charged with indecent exposure. A woman robbing a convenience store in Kansas got in a tussle with a clerk and literally lost her shirt. A school teacher in Texas is contesting her termination because topless photos of her were posted on an unrelated website. A Hunan television presenter was suspended from her job for appearing topless with two other women in an advertisement to raise awareness of female health. And now the U.S. government has launched a campaign which encourages women to breastfeed — an act which often requires (gulp) the public baring of a breast!

Indecent exposure laws are aimed at discouraging the display of bare parts of the human body that, pursuant to the standards of local cultural norms, would otherwise be clothed. The unwelcome showing of adult genitalia is the most common example of indecent exposure. Indecent exposure may also involve masturbation or sexual intercourse in a public setting. In the minds of many, bare breasts would also qualify.

Although women are occasionally charged with indecent exposure for breastfeeding, federal law and an overwhelming majority of states explicitly protect nursing mothers from legal sanction. Nevertheless, mainstream suspicion of the dreaded bare breast continues to inhibit many women from exercising their legal right to breastfeed.

Who can forget last year when Barbara Walters relayed a derogatory anecdote about witnessing a woman breast-feeding on an airplane? "It made me very nervous," Walters said on the May 17, 2005 airing of the ABC talk show, “The View.” "She didn't cover the baby with a blanket. It made us uncomfortable." Co-host Elisabeth Hasselbeck, who was nursing her daughter at the time, went even further adding she was "uncomfortable breast-feeding in general."

And why not? Bare breasts apparently can be very dangerous. According to a California Women's Law Center report, in 2001, a woman in San Mateo, Calif., was asked to stop nursing at a public pool because the staff feared that her breast milk "might infect the pool water." In 2004, another woman at a public pool was handed a towel and asked to "cover up" when she began to nurse because she was "in full view of a senior exercise swim class" and "men and teenage boys" might see her. No wonder Janet Jackson's famous 2004 Super Bowl "wardrobe malfunction" caused such a stir.

Depictions of the bare breast are also considered suspect. In 2003, a Texas grand jury indicted Jaqueline Mercado for the "lewd exhibition" of her breast and for inducing a child to engage in "sexual conduct and sexual performance," because she appeared in a photograph breast-feeding her one-year-old son. The year before, The Justice Department spent $8,000 on blue drapes to cover the one-breast-exposed "Spirit of Justice" statue, reportedly because then Attorney General John Ashcroft didn't feel comfortable being photographed in front of it.

But the female breast has not been the only source of bare breast paranoia. Burgeoning man-breasts — fleshy, sagging and bare — have also proven frightening to some. In April 2005, Jerome Mason, 23, six feet tall and 200 pounds, was charged with indecent exposure after appearing topless on a city street. "He's a guy. He's real tall, and he's got a full set of breasts," prosecutor Kevin Donovan explained.

Today, both women and men go topless at public beaches throughout Europe and Australia, and somehow, those societies continue to flourish. Closer to home, New York, Hawaii, Maine, Ohio, and Texas all have laws on the books which allow females to remove their clothing above the waist in public wherever males can legally do so. Last year, workers at the Justice Department finally removed the blue drapes that famously covering the bare-breasted "Spirit of Justice" statue. Even so, the president recently placed his signature on legislation that increases indecency fines tenfold, largely in response to the Janet Jackson incident (the breast that shocked a nation).

Interestingly, as late as the 1930s, both women and men were largely prevented from bathing or swimming in public places without wearing bathing suits that covered above the waist. Perhaps, to assuage those overcome with fear at the site of a bare breast, we should return to those simpler times. In fact, why stop there? Why not go back to the Victorian era when the sight of a woman's leg was considered the height of indecency? With global warming and ultraviolet rays being what they are, just think of the health benefits! Mull it over…and while you're at it, have a very decent summer.

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently an associate professor of law at the University of Washington School of Law. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.