This summer, being careful not to bare too much flesh could be even more important than wearing sunscreen. An insufficient swimsuit could mean arrest. It might also lead to being designated a sex offender and losing employment and home.
A confluence of two political surges could prove treacherous. First, there is a growing government intolerance for nude sunbathing. For example, Fire Island National Seashore recently announced the park service would begin enforcing the state law prohibiting "exposure of a person." While recognizing that certain beaches had long been considered clothing optional, the park service stated that public nudity was incompatible with the park's purposes. It explained that not everyone accepted nudity ("visitor use conflict").
Second, the continuing concern with protecting children from adult nudity has led to legislative enthusiasm in classifying people as sex offenders. The New York Legislature this session entertained a bill that would create new crimes of "public lewdness," including a felony that requires registration as a sex offender. People who expose their private parts in public where a child under 14 is "likely to present," whether or not such a child is actually present, would commit the felony.
Naturists, people who espouse and practice social nudity, are especially at risk in this reconfigured legal landscape. However, even a casual nonconformist could succumb to a rogue wave of regulation. Consider a sunbathing schoolteacher who removes her top, perhaps worried about her tan lines.
There is a general belief that women's bare breasts will not result in arrest, but that is not necessarily true, even in New York. The state statute prohibiting exposure specifically provides "private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola." New York's highest court had the opportunity to declare this provision a violation of gender equality in 1992, but it sidestepped the issue and merely held that the statute did not apply to the bare-breasted protesters in the case before it.
Even where laws include modifiers such as "lewdness" or "sexual gratification," these terms have been applied inconsistently.
While courts have decided such language is not unconstitutionally vague, courts have never been able to articulate any precise meaning. The topless sunbather in her backyard would seem to be excluded, at least until her lover arrives and kisses her neck.
Kiss or not, a court might declare the topless sunbather innocent, but odds are that the case would not get that far. One of the greatest dangers of public exposure and lewdness laws is their power to shame. If the topless sunbather pleads guilty, as there is often pressure to do in seemingly minor criminal cases, it would not only be embarrassing, but she could find herself having to register as a sex offender. Her teaching certificate would be revoked, other employment and educational opportunities would be circumscribed, her Internet use would be monitored, and she might have to move if her home is too close to a school or park.
Protecting children is certainly laudable. But the perils of children encountering nude on the beach is overblown. Transforming sunbathers into sex offenders and the park service into the swimsuit police does not make our children safer, or more secure.
This is not what we want New York laws to be.