Are there topless laws in SC?
First, you may be wondering what the heck I’m talking about. What is a “topless law?” If you missed it, there is a worldwide movement to change indecent exposure and other state laws that make it a crime for a woman to expose her breasts. If it is not a crime for men to expose their breasts, how is that fair?
As far as I know, there is no “topless law” in SC. There is no specific “topless ban” in SC, and there is no law that says, “it is a crime for a woman to take her shirt off in public.” We do, however, have an indecent exposure law that, as applied to women removing their shirts, might be “void for vagueness.”
Should the legislature amend the indecent exposure laws in SC to clarify that it does not apply to topless women? Does SC’s indecent exposure law violate the Equal Protection clause because it discriminates between men and women? Is it void for vagueness as applied to topless women?
Are There Topless Laws in SC?
SC’s indecent exposure law arguably applies to women who remove their shirts in public. A few years ago, I assumed that it should apply to women who go topless in public. After considering the issue, however, I think SC needs to add an exception to SC’s indecent exposure law for topless women…
The times are changing. They always do, and today’s society is not what it was 100 years ago. When these laws were passed, the men in charge were all about repressing women and ensuring they stayed in their place. Lawmakers passed laws to force their own sense of morality on the heathen masses. We don’t live in that world anymore.
I agree with the Tenth Circuit Court of Appeals in Free the Nipple v. City of Fort Collins when they said that topless bans discriminate against women. The main non-religious justification for these laws is it is assumed that men will be sexually aroused if they see women’s breasts in public, and that would be, well, distracting. Also, the sexual nature of a woman’s breasts will harm children when they see it.
Except, the notion that female breasts are primarily objects of sexual desire is a stereotype that is a product of society, and indecent exposure laws that criminalize female breasts only perpetuate that stereotype. If you are female, breasts are primarily tools for feeding your kids. Get over it.
Indecent Exposure Laws in SC
SC Code Section 16-15-130 makes it a crime “to wilfully, maliciously, and indecently expose” your “person” in public:
(A)(1) It is unlawful for a person to wilfully, maliciously, and indecently expose his person in a public place, on property of others, or to the view of any person on a street or highway.
Note that the law specifically says, “his person,” but whatever. The legislature consistently uses the male pronoun throughout the SC Code to refer to both men and women collectively, so that doesn’t mean anything. SC’s indecent exposure law does make an exception for breastfeeding:
(2) This subsection does not apply to a woman who breastfeeds her own child in a public place, on property of others, to the view of any person on a street or highway, or any other place where a woman and her child are authorized to be.
Indecent exposure is punishable by three years in prison and sex offender registry – does that make sense as potential punishments for a woman who removes her shirt in public?
Why SC’s Indecent Exposure Law is Unconstitutional
For starters, as applied to female breasts, it is extremely vague, and it is subject to a different interpretation depending on the morals, values, and religion of the person you ask.
For example, let’s assume a woman exposes her breasts in full view of the public in a city park in Myrtle Beach, SC.
She purposefully exposes her breasts – it wasn’t an accident. That’s willful, one of the requirements in the statute. But, was it malicious? Was it indecent? Depending on the person, you can get completely opposite answers…
If you were raised and lived your entire life believing that women’s breasts were evil, sexual things that should always be hidden, you will probably think that it is indecent. If you think it is indecent, then the woman’s act of removing her shirt will also seem malicious to you.
The reality, however, is that the world you live in is not the same world that the rest of us live in when it comes to morality. Every person has different values, morals, and religious affiliations, and a woman’s breasts just don’t have the same stigma they did 100 years ago.
Many Americans today will be more offended by the notion of arresting and jailing a woman for exposing her breasts than they would be offended by seeing a woman’s breasts. This is why SC’s indecent exposure law, as applied to female breasts, is uncertain and vague. Does it apply to female breasts? That depends on who you are and how you see the world…
The second reason SC’s indecent exposure law is unconstitutional is that, as applied to female breasts, it is an equal protection violation under the US and SC Constitutions (see Free the Nipple v. City of Fort Collins).
Which States Have Topless Bans?
According to gotopless.org, there are 33 states where women can go topless and it is not a crime, 15 states with laws that are ambiguous, and four states where it is definitely a crime for a woman to remove her shirt.
South Carolina is included in the list of “ambiguous” states, probably because of the way the SC indecent exposure law is written (see above). To be clear, though – our indecent exposure law probably does not seem ambiguous to many local police officers. Exposed breast = indecent exposure, because that is how it has always been.
Utah Woman Arrested for Being Topless in Her Own Home
A woman in Utah was arrested and charged with “lewdness in front of a child” for exposing her breasts in her own home:
Tilli Buchanan and her husband were installing insulation inside their garage when they stripped down to their underwear to get the itchy materials off their skin. Shortly after taking her top off, Tilli Buchanan’s three step-children ran downstairs and into the garage and saw her topless.
Buchanan told the Tribune the kids were embarrassed at first, but she said they shouldn’t be, just because she’s a woman. She said they aren’t uncomfortable seeing their father’s chest, so her’s should be no different…
Apparently the children’s biological mother heard about what happened and she alerted police.
Utah is in the Tenth Circuit, and this arrest came after the Tenth Circuit Court of Appeals held that a topless ban in Fort Collins, Co, violated the Equal Protection Clause.
Free the Nipple v. City of Fort Collins – Tenth Circuit Overturns Topless Ban
In Free the Nipple v. City of Fort Collins, the Tenth Circuit Court found that Fort Collins’ topless ban was unconstitutional because it discriminates between men and women with no important government objective:
Any law premised on “generalizations about ‘the way women are’”—or the way men are—will fail constitutional scrutiny because it serves no important governmental objective.
The Court analyzed the ordinance’s constitutionality under the “intermediate scrutiny” standard, which applies to gender-based discrimination claims, and found that the City did not provide “an exceedingly persuasive justification” for the topless ban.
The City argued that allowing women to expose their breasts would disrupt public order, cause distracted driving, and endanger children, but the Tenth Circuit found that there was no evidence to support their positions.
Topless bans are not based on public safety or some notion that we must protect children from seeing female breasts – the bans are based on morality:
…the City’s professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects. Id. (“[C]hildren do not need to be protected from the naked female breast itself but from the negative societal norms, expectations, and stereotypes associated with it.”)
We don’t have “topless laws” in SC, but SC’s indecent exposure law arguably criminalizes exposure of female breasts – depending on who is interpreting the law. The SC legislature should amend the indecent exposure law to provide a specific exception for female breasts, as they did for breastfeeding.
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