Nantucket To Decide If Women Can Go Topless At Beaches Next Year (title, family friendly)

[Beminetonight]

Well OK, whatever the law is, I'm sure no individual town can say "This law doesn't apply here".

But would bare breasts be "open and gross lewdness" anyway? It's not something I ever recall hearing about, one way or the other.

[htfdcolt]

Originally Posted by Beminetonight

Well OK, whatever the law is, I'm sure no individual town can say "This law doesn't apply here".

But would bare breasts be "open and gross lewdness" anyway? It's not something I ever recall hearing about, one way or the other.

That's a typical vestige of Puritan, hypocritical, male-centric thinking...

[lrfox]

Originally Posted by Beminetonight

Well OK, whatever the law is, I'm sure no individual town can say "This law doesn't apply here".

But would bare breasts be "open and gross lewdness" anyway? It's not something I ever recall hearing about, one way or the other.

If the town votes in favor, the petition has to be approved by the Attorney General's Office at the state level which would make it legal in Nantucket. There's a chance that the town could vote in favor could pass and the AGO could deny the petition, but that seems unlikely.

And yes, the law specifies "female breasts." It's honestly kind of silly.

[bostongymjunkie]

Women were puritans too. I'm sure you'll still find a large number of women of all political/apolitical religious/non-religious persuasions who define open breasts as nudity, and who don't want their kids exposed to nudity until they deem appropriate. My comment is directed to the male centric thing. That doesn't mean I'm against nude beaches, where people have a choice to partake or not partake.

[Beminetonight]

That note that Irfox linked to is interesting, but it doesn't seem to clarify the law at all, in fact maybe the opposite. Section 2 says "The display of nudity must be intentional, done in a manner to produce alarm or shock, and must actually produce alarm or shock that is a "serious negative emotional experience," and not just nervousness and offense." Vicarious concern for other people or even disgust does not “convert any ordinary indecent exposure case into one for open and gross lewdness."

So evidently "indecent exposure" is a lesser offense, even though it can only concern exposure of the genitals. Bare breasts can only be illegal as "open and gross lewdness" but it has to occur under conditions which are pretty extreme--though still not exactly defined. It doesn't look as if a prosecution for women being topless could ever succeed, unless they thought they could prove that it was being done as exhibitionism.

But whatever amount of ambiguity there is in the law, I still wonder if a single town can make its own definition of it.

[lrfox]

Originally Posted by Beminetonight

That note that Irfox linked to is interesting, but it doesn't seem to clarify the law at all, in fact maybe the opposite. Section 2 says "The display of nudity must be intentional, done in a manner to produce alarm or shock, and must actually produce alarm or shock that is a "serious negative emotional experience," and not just nervousness and offense." Vicarious concern for other people or even disgust does not “convert any ordinary indecent exposure case into one for open and gross lewdness."

So evidently "indecent exposure" is a lesser offense, even though it can only concern exposure of the genitals. Bare breasts can only be illegal as "open and gross lewdness" but it has to occur under conditions which are pretty extreme--though still not exactly defined. It doesn't look as if a prosecution for women being topless could ever succeed, unless they thought they could prove that it was being done as exhibitionism.

But it's not just about reducing the risk of being found "guilty" at trial. In reality, this (specifically the "female breasts" component ) would rarely (if ever) get to that point. In most instances where law enforcement was called, they'd probably just tell the person to cover up and/or move to a quieter section of the beach. In more extreme cases there might be an arrest, but I doubt there would be criminal charges. Even if there were, they'd almost certainly be dropped. I can't imagine there's been an instance of a topless person at a beach being arrested and actually going to trial (solely for open and gross lewdness) in the past 30 or more years. The point of this petition is to avoid any encounters and potential legal repercussions simply for being topless at a beach.

Still, it really doesn't seem that hard for a decent prosecutor to argue a case based on this law if for some bizarre reason it ever got that far. Keep in mind, the law is based on the idea that exposed genitals or female breasts can and do produce "shock" or "alarm" among people who are present. So if a woman takes her top off and lays down on a towel on a crowded beach and someone nearby calls the police to complain that they're horrified and their day is ruined, the prosecution is 4/5 (according to the steps in the instructions for prosecuting such a case) of the way there. All they'd then need to do is successfully argue that the topless woman's intent was to cause shock/alarm to those around her. That's tougher to prove, but between the act of intentionally going topless in public combined with any other compelling circumstantial evidence and anything else they can use about the defendant to build their case (i.e. prior arrests/citations, social media posts, character witnesses, etc.), it's not necessarily a major challenge in all cases.

But whatever amount of ambiguity there is in the law, I still wonder if a single town can make its own definition of it.

Yes they can. If the Citizen's Petition (what they're voting on today) in Nantucket is approved, Nantucket would then file a Home Rule Petition with the Attorney General's Office which essentially requests exemption from the state law in this instance.

[Beminetonight]

Yes Irfox, that's what would logically follow. But I can't see the state agreeing to change to let a town change the criminal law. It might even be called unconstitutional, the idea that the law would vary according to where you are in the state. I think that's the key point--this would be a town trying to change the state law.

[lrfox]

Originally Posted by Beminetonight

Yes Irfox, that's what would logically follow. But I can't see the state agreeing to change to let a town change the criminal law. It might even be called unconstitutional, the idea that the law would vary according to where you are in the state. I think that's the key point--this would be a town trying to change the state law.

Yeah, we'll see. On one hand, I don't know how the AGO can approve a change to a local bylaw that violates a state law as the state law is written (regardless of whether or not they feel it is outdated). On the other hand, I have a very hard time seeing this particular AG outright denying the petition. They can't just change the state law (there's a legislative process for that), but I think they'll try and find some ambiguity in the state law or use a different interpretation of the law to accept this particular petition.

[htfdcolt]

and (drum roll)...looks like they just passed it!

https://www.bostonglobe.com/2022/05/...pless-beaches/

[GeoffD]

Originally Posted by lrfox

Yeah, we'll see. On one hand, I don't know how the AGO can approve a change to a local bylaw that violates a state law as the state law is written (regardless of whether or not they feel it is outdated). On the other hand, I have a very hard time seeing this particular AG outright denying the petition. They can't just change the state law (there's a legislative process for that), but I think they'll try and find some ambiguity in the state law or use a different interpretation of the law to accept this particular petition.

I dug through the statutes. Here is the indecent exposure penalty. There isn’t a definition of exactly what indecent exposure is.
https://malegislature.gov/Laws/Gener...r272/Section53

Here are the current prosecution guidelines.
https://www.mass.gov/doc/7340-indece...-s-53/download

The way I read this, exposed breasts is already not treated as indecent exposure. There is no state penalty since breasts aren’t considered to be genitalia.