Decided
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
Herald Price Fahringer, for Appellant Santorelli.
Donald W. O'Brien, Jr., for Appellant Schloss.
Elizabeth Clifford, for Respondent.
MEMORANDUM:
The order of Monroe County Court should be reversed andthe informations dismissed.
Defendants' claim that Penal Law § 245.01 offends theequal protection clauses of the Federal and State Constitutionswas expressly passed upon by County Court, and its disposition ofthat claim was a necessary basis for its order of reversal of theRochester 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 thePeople's argument that under CPL 470.35(2)(a) the Court ofAppeals lacks jurisdiction to pass upon that claim.
Defendants were arrested for violating Penal Law § 245.01 (exposure of a person) when they bared "that portion ofthe breast which is below the top of the areola" in a Rochesterpublic park. The statute, they urge, is discriminatory on itsface since it defines "private or intimate parts" of a woman'sbut not a man's body as including a specific part of the breast. That assertion being made, it is settled that the People thenhave the burden of proving that there is an important governmentinterest at stake and that the gender classification issubstantially related to that interest (see,MississippiUniversity for Women v Hogan,458 US 718, 725). In this case,however, the People have made no attempt below and make nonebefore us to demonstrate that the statute's discriminatory effectserves an important governmental interest or that theclassification is based on a reasoned predicate. Moreover, thePeople do not dispute that New York is one of only two stateswhich criminalizes the mere exposure by a woman in a public placeof a specific part of her breast.
Despite the People's virtual default on theconstitutional issue, we must construe a statute, which enjoys apresumption of constitutionality, to uphold its constitutionalityif a rational basis can be found to do so (see, McKinney's ConsLaws of NY, Book 1, Statutes, § 150[c];People v Price,33 NY2d831 [defendant's equal protection claim not addressed becausestatute was construed to not apply];Childs v Childs, 69 AD2d406, 418-421).
Penal Law § 245.01, when originally enacted (L 1967,c 367, § 1), "was aimed at discouraging 'topless' waitresses andtheir promoters (see, Practice Commentary by Denzer andMcQuillan, McKinney's Cons Laws of N.Y., Book 39, Penal Law,§ 245.01, p. 200)" (People v Price,33 NY2d 831, 832, supra). Considering the statute's provenance, we held inPrice that awoman walking along a street wearing a fishnet, see-throughpull-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). Thoughthe statute and the rationale for that decision are different, webelieve that underlying principle ofPeople v Price (supra)should be followed.[n 1] We, therefore, conclude that Penal Law § 245.01 is not applicable to the conduct presented in thesecircumstances and that the City Court was correct in dismissingthe informations.
1. Contrary to the position of the concurrence (see concurringopn, at 4), nothing in the Legislature's repeal and replacementof former Penal Law § 245.01 (L 1983, ch 216), subsequent to ourdecision inPrice, affects the holding ofPrice or our analysishere. The revised § 245.01 expanded the application of theformer 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 discriminatoryinfirmity which occasioned our decision inPrice. We find nobasis in the revised statute or in the statutory history for notgiving effect toPrice here (see, Bill Jacket, L 1983, ch 216,Governor's Approval Memorandum).
Titone, J. (concurring):
Citing the maxim that wherever possible statutes shouldbe construed so as to sustain their constitutionality (see, e.g.,Matter of Sarah K.,66 NY2d 223, cert denied sub nom.Kosher vStamatis,475 US 1108;Loretto v Teleprompter Manhattan CATVCorp.,58 NY2d 143), the Court bypasses appellants' equalprotection argument by holding that Penal Law § 245.01 simplydoes not apply "in these circumstances." That maxim is unhelpfulhere, however, since both the language and the history of PenalLaw § 245.01 demonstrate quite clearly that the conduct withwhich appellants were charged is precisely the type of behaviorthat the Legislature intended to outlaw when it enacted Penal Law§ 245.01. Thus, appellants' constitutional equal protectionclaim cannot be avoided and the only relevant legal maxim is theone that demands proof by the State that a classification basedon gender be substantially related to the achievement of animportant governmental objective (e.g.,Caban v Mohammed,441 US380, 388, 393;People v Liberta,64 NY2d 152, 168). Since thatstandard has not been satisfied here, I would hold that, asapplied in these circumstances, Penal Law § 245.01 isunconstitutional and, for that reason, the charges againstappellants should have been dismissed.
Appellants and the five other women who were arrestedwith them were prosecuted for doing something that would havebeen permissible, or at least not punishable under the penallaws, if they had been men -- they removed their tops in a publicpark, exposing their breasts in a manner that all agree wasneither lewd nor intended to annoy or harass. As a result ofthis conduct, which was apparently part of an effort to dramatizetheir opposition to the law, appellants were prosecuted underPenal Law § 245.01, which provides that a person is guilty ofthe petty offense of "exposure" when he or she "appears in apublic place in such a manner that the private or intimate partsof his [or her] body are unclothed or exposed." The statute goeson to state that, for purposes of this prohibition, "the privateor intimate parts of a female person shall include that portionof the breast which is below the top of the areola."[n 1] Thestatute thus creates a clear gender-based classification,triggering scrutiny under equal protection principles (see,Craigv Boren,429 US 190).
The majority has attempted to short-circuit this equalprotection inquiry by holding that Penal Law § 245.01 isinapplicable to these facts. However, apart from a crypticreference toPeople v Price (33 NY2d 831), which the majorityadmits involved a different statute and rationale, no explanationis offered as to why this facially applicable statute should notbe applied here or what specific factor differentiates thesecircumstances from those in which the statute was intended toapply.
Price is inapt in this context because it involved thepredecessor to the current Penal Law § 245.01 (L 1967, ch 367,§ 1, amended L 1970, ch 40, § 1, repealed L 1983, ch 216, §1), which was entitled "exposure of a female" and, as themajority 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 § 245.01, at 299-300). Given that purpose,it made sense for the Court to hold inPrice 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).[n 2]
In contrast, the current version of Penal Law §245.01, which was adopted in 1983 to replace the statute at issueinPrice (L 1983, ch 216, § 1), was specifically intended toexpand the reach of the "public exposure" prohibition. The newprovision was aimed at filling a gap resulting from the fact thatthe existing law prohibited women from appearing topless inpublic but contained no prohibition against either men or womenappearing bottomless in public places (Bill Jacket, L 1983, ch216, Governor's Approval Memorandum). The explicit purpose ofthe new law was to protect parents and children who use thepublic beaches and parks "from the discomfort caused by unwelcomepublic nudity" (id.; accord, Bill Jacket, L 1983, ch 216,Sponsors' Memorandum re A-5638; id., Letter dated May 31, 1983from Assembly Member G.E. Lipshutz to Governor Cuomo re: A-5638).Simply put, the focus of the legislation was to proscribe nudesunbathing by ordinary citizens (see,People v Hollman,68 NY2d202). It thus cannot seriously be argued that the presentversion of Penal Law § 245.01 was intended to be limited, as itspredecessor may have been, to commercially-motivated conduct.
Nor can it be argued that Penal Law § 245.01 wasintended to be confined to conduct that is lewd or intentionallyannoying. First, there is absolutely no support in thelegislative history for such a construction. Second, aconstruction of Penal Law § 245.01 requiring lewdness would beof highly questionable validity, since it would render Penal Law§ 245.00 [prohibiting the exposure of "intimate parts" "in alewd manner"] redundant (see, Statutes, McKinney's Consol Laws ofNY, Book 1, § 98 ["[a]ll parts of a statute must be harmonized ** * and effect and meaning must * * * be given to the entirestatute"). Finally, whatever the Court may have said about thelimitations of the predecessor provision (see,People v Price,supra), this Court has already applied the current version ofPenal Law 245.01 to the public exposure of a person's "intimateparts," even where the conduct was merely an expression of apersonal philosophy or a simple effort to "enhance * * * comfort[or] acquire an even tan" (People v Hollman, supra, at 206). Ouranalysis inPeople v Hollman (supra), thus plainly belies thelimiting construction the majority now seems to adopt.
Accordingly, there is simply no sound basis forconstruing Penal Law § 245.01 so as to be inapplicable to thedeliberate, nonaccidental conduct with which appellants werecharged. The Court's reliance on the "presumption ofconstitutionality" in these circumstances is thus nothing morethan an artful means of avoiding a confrontation with animportant constitutional problem. While it is true that statutesshould be construed so as to avoid a finding ofunconstitutionality if possible (Statutes, supra, § 150[c], at321), courts should not reach for strained constructions or adoptconstructions that are patently inconsistent with thelegislation'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 statutoryconstruction and has, in effect, rewritten a statute so that itno longer applies to precisely the conduct that the Legislatureintended to outlaw.
The equal protection analysis that the majority hasattempted to avoid is certainly not a complex or difficult one. When a statute explicitly establishes a classification based ongender, as Penal Law § 245.01 unquestionably does, the State hasthe burden of showing that the classification is substantiallyrelated 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 analysismay have been made somewhat more difficult in this case becauseof the People's failure to offer any rationale whatsoever for thegender-based distinction in Penal Law § 245.01. Nonetheless, inthe absence of any discussion by the People, the objective to beachieved by the challenged classification can be readilyidentified.
It is clear from the statute's legislative history, aswell as our own case law and common sense, that the governmentalobjective to be served by Penal Law § 245.01 is to protect thesensibilities of those who wish to use the public beaches andparks in this State (People v Hollman, supra, at 207; see, BillJacket, L 1983, ch 216, Governor's Approval Memorandum, supra;id., Sponsor's Memorandum, supra; id., Letter from AssemblyMember G.E. Lipshutz to Governor Cuomo, supra). And, since thestatute prohibits the public exposure of female -- but not male -- breasts, it betrays an underlying legislative assumption thatthe sight of a female's uncovered breast in a public place isoffensive to the average person in a way that the sight of amale's uncovered breast is not. It is this assumption that liesat the root of the statute's constitutional problem.
Although protecting public sensibilities is a generallylegitimate goal for legislation (see, e.g.,People v Hollman,supra), it is a tenuous basis for justifying a legislativeclassification that is based on gender, race or any othergrouping that is associated with a history of social prejudice (see,Mississippi Univ. for Women v Hogan,458 US 718, 725 ["[c]are must be taken in ascertaining whether the statutoryobjective itself reflects archaic and stereotypic notions"]). Indeed, the concept of "public sensibility" itself, when used inthese contexts, may be nothing more than a reflection ofcommonly-held preconceptions and biases. One of the mostimportant purposes to be served by the equal protection clause isto ensure that "public sensibilities" grounded in prejudice andunexamined stereotypes do not become enshrined as part of theofficial policy of government. Thus, where "publicsensibilities" constitute the justification for a gender-basedclassification, the fundamental question is whether theparticular "sensibility" to be protected is, in fact, areflection of archaic prejudice or a manifestation of alegitimate government objective (cf.,People v Whidden,51 NY2d457, 461).
Viewed against these principles, the gender-basedprovisions of Penal Law § 245.01 cannot, on this record,withstand scrutiny. Defendants contend that apart fromentrenched cultural expectations, there is really no objectivereason why the exposure of female breasts should be consideredany more offensive than the exposure of the male counterparts. They offered proof that, from an anatomical standpoint, thefemale breast is no more or less a sexual organ than is the maleequivalent (see, e.g., J McCrary, Human Sexuality [1973] 141). They further contend that to the extent that many in our societymay regard the uncovered female breast with a prurient interestthat is not similarly aroused by the male equivalent (but seeKinsey, Sexual Behavior in the Human Female [1953] 586-587;Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman, Noteon Males' and Females' Preference for Opposite-Sex Body Parts, 38Psychological Reports 485-486), that perception cannot serve as ajustification for differential treatment because it is itself asuspect cultural artifact rooted in centuries of prejudice andbias toward women. Indeed, there are many societies in otherparts of the world -- and even many locales within the UnitedStates -- where the exposure of female breasts on beaches and inother recreational area is commonplace and is generally regardedas unremarkable.[n 3] It is notable that, other jurisdictions havetaken the position that breasts are not "private parts" and thatbreast exposure is not indecent behavior (State v Parenteau, OhioMisc 2d 10, 11, citingState v Jones, 7 NC App 165;State vMoore, 241 P2d 455;State v Crenshaw, 61 Haw 68; see alsoDuvallon v State, 404 So 2d 196), and twenty-two states specifically confine their statutory public exposure prohibitionsto uncovered genitalia.[n 4]
The People in this case have not refuted this evidenceor attempted to show the existence of evidence of their own toindicate that the non-lewd exposure of the female breast is inany way harmful to the public's health or well being. Nor havethey offered any explanation as to why, the fundamental goal thatPenal Law § 245.01 was enacted to advance -- avoiding offense tocitizens who use public beaches and parks -- cannot be equallywell served by other alternatives (see,Wengler v Druggists Mut.Ins. Co.,446 US 142, 151-152;Orr v Orr,440 US 268, 281-283).
In summary, the People have offered nothing to justifya law that discriminates against women by prohibiting them fromremoving their tops and exposing their bare chests in public asmen are routinely permitted to do. The mere fact that thestatute's aim is the protection of "public sensibilities" is notsufficient to satisfy the state's burden of showing an"exceedingly persuasive justification" for a classification thatexpressly discriminates on the basis of sex (see,Kirchberg vFeenstra,450 US 455, 461). Accordingly, the gender-basedclassification established by Penal Law § 245.01 violatesappellants' equal protection rights and, for that reason, Iconcur in the majority's result and vote to reverse the orderbelow.
F O O T N O T E S
1. Public exposure of a female's breast for the purposes ofbreastfeeding infants or "entertaining or performing in a play,exhibition, show or entertainment" is expressly excluded from thestatutory prohibition.
2. Significantly, the allegation inPrice was that the defendanthad been observed on a public street wearing a fishnet pulloverwhich left portions of her breasts visible, prompting the Courtto observe that, absent certain conditions, "legislation may notcontrol the manner of dress" (33 NY2d, at 832). Thatconsideration is obviously not relevant here, where appellants'conduct was obviously intended as a political, rather than afashion, statement.
3. Interestingly, expert testimony at appellants' trialsuggested that the enforced concealment of women's breastsreinforces cultural obsession with them, contributes towardunhealthy attitudes about breasts by both sexes and evendiscourages women from breastfeeding their children.
4. See, Alaska Stat § 11.41.460; Cal Penal Code Ann § 314 [West]; Col Rev Stat § 18-7-302; Idaho Code § 18-4104; IowaCode § 709.9; Kan Stat Ann § 21-4301; Ky Rev State Ann § 510-150; Me Rev Stat Ann 17-A, § 854; Mo Rev Stat § 566-130;Mont Code Ann § 45-5-504; Neb Rev Stat § 28.806; NH Rev StatAnn § 645.1; ND Cent Code § 12.1-20-12.1; NM Stat Ann 30-9-13;Okla Stat, tit 21, § 1021; Or Rev Stat § 163.465; RI Gen Laws§ 11-45.1; SD Codified Laws Ann § 22-24-1; Tenn Code Ann §39-13.511; Tex Penal Code Ann § 21.08; Utah Code Ann §76-9-702; Wisc Stat § 944.20; see alsoRobins v Los AngelesCounty, 56 Cal Rptr 853.
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Order reversed and informations dismissed in a memorandum. ChiefJudge Wachtler and Judges Kaye, Hancock and Bellacosa concur.Judge Titone concurs in result in an opinion in which JudgeSimons concurs.