Does Topless = Indecent Exposure?

posted by on Tuesday, September 09, 2008

It has never been offensive or contrary to our public sense of morality for a male to be in public without a shirt. Woman on the other hand are subject to a double standard. However, one cannot help but wonder "what crime would be committed if a female were to sunbathe topless at a public beach?"

At first blush, the answer may seem logical that it would constitute the crime of indecent exposure. In the words of Lee Corso: "Not so fast my friend."

The recent Iowa Supreme Court decision of State v. Ronnie Isaac(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080905/06-2030.pdf) sheds some light on this provocative question. While the facts of Mr. Isaac's case are much more offensive and troubling than the question being posed here and will likely lead to some legislative changes, the decision does provide us with a thorough outline to be used in answering this question. According to the Iowa Supreme Court in Isaac, public exposure does not necessarily equal the crime of indecent exposure. In order to establish the crime of indecent exposure, the State must prove beyond a reasonable doubt the following four elements:

1. The exposure of genitals or pubes to someone other than a spouse;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.

In the situation of our topless sunbather, clearly elements 3 and 4 may not be difficult for the State to establish, however, elements 1 and 2 could be problematic.

First, the human breasts do not qualify as "genitals" or "pubes" under Iowa law nor under any recognized medical definition. Therefore, the State would be unable to establish the first element and as a result, a judgment of acquittal or dismissal of the charge would be required on that fact alone.

Second, just assuming that somehow the female breast would qualify as "genitals" or "pubes" the State must prove beyond a reasonable doubt that at the time of the exposure, the person exposed himself/herself for the purpose of arousing or satisfying his/her sexual desires or those of the person making the observation. If there is an understandable alternative purpose to the act other than sexual gratification (who wants tan lines?), then the intent element behind this crime arguably could not be established either.

When we apply the rules of law set forth by the Iowa Supreme Court, it does not appear that topless sunbathing constitutes indecent exposure but a word of caution should be given. Many cities and townships have their own set of municipal ordinances that may have provisions outlawing this type of conduct. We can't begin to go through each and every municipal code section available but we can and do always enjoy providing a little food for thought.