Viewed against these principles, the gender-based provisions of Penal Law § 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; 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.[n 3] It is notable that, other jurisdictions have taken the position that breasts are not "private parts" and that breast exposure is not indecent behavior (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.[n 4]
The People in this case have not refuted 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 § 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 US 142, 151-152; Orr v Orr, 440 US 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 US 455, 461). Accordingly, the gender-based classification established by Penal Law § 245.01 violates appellants' equal protection rights and, for that reason, I concur in the majority's result and vote to reverse the order below.
