NCJ Number
141698
Journal
Criminal Law Bulletin Volume: 29 Issue: 2 Dated: (March-April 1993) Pages: 137-146
Date Published
1993
Length
10 pages
Annotation
The 1992 appellate court decision in People v. Santorelli focused on the New York criminal law that prohibits women, but not men, from exposing their breasts in public.
Abstract
Several women bared their breasts in a secluded section of a Rochester park in 1986 to publicize their grievances against New York Penal Law Section 245.01. At their trial they challenged the law's constitutionality on the grounds that it denied them equal protection under both the Federal and State constitutions by allowing nudity above the waist for one sex but not the other. The only prosecution testimony was that of the police, who stated that the demonstration was peaceful and orderly and that none of the defendants engaged in sexually suggestive or obscene conduct. The trial judge dismissed the charges, but the appellate court reversed the decision. In June 1991, the State's highest court, the Court of Appeals, agreed to hear the case. Arguments focused on the U.S. Supreme Court view that gender-based discrimination in any law is "inherently suspect" and that the state must prove an important objective requiring the discrimination. Arguments focused on the lack of empirical evidence regarding an important governmental interest in bare-chested women, the law's perpetuation of sexual stereotypes based on a masculine ideology, the lack of similar laws in 48 other States, and data from the Kinsey reports of 1948 and 1953 indicating no difference in the extent to which male and female breasts can be used to provide sexual stimulation. Although the court did not find the New York law unconstitutional, it held that women are free to bare their breasts in public as long as that exposure is not for commercial purposes or is not lewd. Footnotes