candyflip

Accordingly, there is simply no sound basis for construing Penal
Law sec. 245.01 so as to be inapplicable to the deliberate,
nonaccidental conduct with which appellants were charged. The
Court's reliance on the "presumption of constitutionality" in these
circumstances is thus nothing more than an artful means of avoiding
a confrontation with an important constitutional problem. While it
is true that statutes should be construed so as to avoid a finding
of unconstitutionality if possible (Statutes, supra, sec. 150c, at
321), courts should not reach for strained constructions or adopt
constructions that are patently inconsistent with the legislation'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 statutory construction and has, in effect,
rewritten a statute so that it no longer applies to precisely the
conduct that the Legislature intended to outlaw.

The equal protection analysis that the majority has attempted to
avoid is certainly not a complex or difficult one. When a statute
explicitly establishes a classification based on gender, [*11]
as Penal Law sec. 245.01 unquestionably does, the State has the burden
of showing that the classification is substantially related 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 analysis may have been made somewhat
more difficult in this case because of the People's failure to offer
any rationale whatsoever for the gender-based distinction in Penal
Law sec. 245.01. Nonetheless, in the absence of any discussion by the
People, the objective to be achieved by the challenged
classification can be readily identified.

It is clear from the statute's legislative history, as well as
our own case law and common sense, that the governmental objective
to be served by Penal Law sec. 245.01 is to protect the sensibilities
of those who wish to use the public beaches and parks in this State
(People v Hollman, supra, at 207; see, Bill Jacket, L 1983, ch 216,
Governor's Approval Memorandum, supra; id., Sponsor's Memorandum,
supra; id., Letter from Assembly Member G.E. Lipshutz to Governor
Cuomo, supra). And, since the statute [*12] prohibits the public
exposure of female -- but not male - - breasts, it betrays an
underlying legislative assumption that the sight of a female's
uncovered breast in a public place is offensive to the average
person in a way that the sight of a male's uncovered breast is not.
It is this assumption that lies at the root of the statute's
constitutional problem.

Although protecting public sensibilities is a generally
legitimate goal for legislation (see, e.g., People v Hollman,
supra), it is a tenuous basis for justifying a legislative
classification that is based on gender, race or any other grouping
that is associated with a history of social prejudice (see,
Mississippi Univ. for Women v Hogan, 458 U.S. 718, 725 ["care must
be taken in ascertaining whether the statutory objective itself
reflects archaic and stereotypic notions"]). Indeed, the concept of
"public sensibility" itself, when used in these contexts, may be
nothing more than a reflection of commonly-held preconceptions and
biases. One of the most important purposes to be served by the equal
protection clause is to ensure that "public sensibilities" grounded
in prejudice and unexamined stereotypes [*13] do not become
enshrined as part of the official policy of government. Thus, where
"public sensibilities" constitute the justification for a
gender-based classification, the fundamental question is whether the
particular "sensibility" to be protected is, in fact, a reflection
of archaic prejudice or a manifestation of a legitimate government
objective (cf., People v Whidden, 51 NY2d 457, 461).

Viewed against these principles, the gender-based provisions of
Penal Law sec. 245.01 cannot, on this record, withstand scrutiny.
Defendants contend that apart from entrenched cultural expectations,
there is really no objective reason why the exposure of female
breasts should be considered any more offensive than the exposure of
the male counterparts. They offered proof that, from an anatomical
standpoint, the female breast is no more or less a sexual organ than
is the male equivalent (see, e.g., J McCrary, Human Sexuality [1973]
141). They further contend that to the extent that many in our
society may regard the uncovered female breast with a prurient
interest that is not similarly aroused by the male equivalent (but
see Kinsey, Sexual Behavior in the Human Female [1953] 586-587;
[*14] Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman,
Note on Males' and Females' Preference for Opposite-Sex Body Parts,
38 Psychological Reports 485-486), that perception cannot serve as a
justification for differential treatment because it is itself a
suspect cultural artifact rooted in centuries of prejudice and bias
toward women. Indeed, there are many societies in other parts of the
world -- and even many locales within the

United States -- where the exposure of female breasts on beaches and
in other recreational area is commonplace and is generally regarded
as unremarkable. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - -
- - - - - -

n3 Interestingly, expert testimony at appellants' trial
suggested that the enforced concealment of women's breasts
reinforces cultural obsession with them, contributes toward
unhealthy attitudes about breasts by both sexes and even discourages
women from breastfeeding their children.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - -
- - - - - -

It is notable that, other jurisdictions have taken the position
that breasts are not "private parts" and that breast exposure is not
indecent behavior [*15] (State v Parenteau, Ohio Misc 2d 10, 11,
citing State v Jones, 7 NC App 165; State v Moore, 241 P2d 455;
State v Crenshaw, 61 Haw 68; see also Duvallon v State, 404 So 2d
196), and twenty-two states specifically confine their statutory
public exposure prohibitions to uncovered genitalia. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - -
- - - - - -

n4 See, Alaska Stat sec. 11.41.460; Cal Penal Code Ann sec. 314 West;
Col Rev Stat sec. 18-7-302; Idaho Code sec. 18-4104; Iowa Code sec. 709.9;
Kan Stat Ann sec. 21-4301; Ky Rev State Ann sec. 510-150; Me Rev Stat Ann
17-A, sec. 854; Mo Rev Stat sec. 566-130; Mont Code Ann sec. 45-5-504; Neb
Rev Stat sec. 28.806; NH Rev Stat Ann sec. 645.1; ND Cent Code sec.
12.1-20-12.1; NM Stat Ann 30-9-13; Okla Stat, tit 21, sec. 1021; Or Rev
Stat sec. 163.465; RI Gen Laws sec. 11-45.1; SD Codified Laws Ann sec.
22-24-1; Tenn Code Ann sec. 39-13.511; Tex Penal Code Ann sec. 21.08; Utah
Code Ann sec. 76-9-702; Wisc Stat sec. 944.20; see also Robins v Los
Angeles County, 56 Cal Rptr 853.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - -
- - - - - -

The People in this case have not refuted [*16] this evidence
or attempted to show the existence of evidence of their own to
indicate that the non-lewd exposure of the female breast is in any
way harmful to the public's health or well being. Nor have they
offered any explanation as to why, the fundamental goal that Penal
Law sec. 245.01 was enacted to advance -- avoiding offense to citizens
who use public beaches and parks -- cannot be equally well served by
other alternatives (see, Wengler v Druggists Mut. Ins. Co., 446 U.S.
142, 151-152; Orr v Orr, 440 U.S. 268, 281-283).

In summary, the People have offered nothing to justify a law that
discriminates against women by prohibiting them from removing their
tops and exposing their bare chests in public as men are routinely
permitted to do. The mere fact that the statute's aim is the
protection of "public sensibilities" is not sufficient to satisfy
the state's burden of showing an "exceedingly persuasive
justification" for a classification that expressly discriminates on
the basis of sex (see, Kirchberg v Feenstra, 450 U.S. 455, 461).
Accordingly, the gender-based classification established by Penal
Law sec. 245.01 violates appellants' equal [*17] protection rights
and, for that reason, I concur in the majority's result and vote to
reverse the order below.

Order reversed and informations dismissed in a memorandum. Chief
Judge Wachtler and Judges Kaye, Hancock and Bellacosa concur. Judge
Titone concurs in result in an opinion in which Judge Simons concurs.

Decided July 7, 1992

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