“The Hamptons” – Going Topless/Public Exposure

After the gang heads out to the Hamptons to see the baby, Jerry, Kramer, and Elaine catch a glimpse George’s girlfriend Jane tanning topless before George gets the chance to see her. By being topless on the beach, has Jane violated public exposure laws?

New York Penal Code 245.01 defines public exposure as appearing in a “public place in such a manner that the private or intimate parts of his body are unclothed or exposed.” For a woman: “the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola.” This essentially means that if you could describe a woman’s rack to a sketch artist, then she has violated the law. While this would seem to mean that women can not go topless in New York under any circumstances, the code specifically makes exceptions for “breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.” Here, Jane was topless and out on the beach, which we can safely assume would be considered a public area. Since Jane was neither breastfeeding nor performing in a show, it sounds like she is guilty of violating the law!

This is not fair! It's not fair.

Not so fast. In 1986, seven Rochester women challenged this section of the penal code, arguing that it was unconstitutionally discriminatory against women. The New York Court of Appeals finally ruled on the case in 1992, and determined in New York v. Santorelli that the punishment did not fit the crime. The court narrowed the law to only apply to women that are topless for commercial purposes, but simply walking around topless to create a buzz, is not violative of the law. While it’s unclear exactly what the legal boundaries of commercial activity are, it does mean that if Jane had been trying to create a commercial buzz, or was taking photos with adoring fans and then asking for a tip in return, then that could create legal jeopardy for her. But simply giving out a sneak preview is not going to create criminal liability for Jane. Since “The Hamptons” took place in 1994, two years after the court passed down this ruling, Jane’s “show” is not going to be considered a crime. Had this episode taken place just a couple of years earlier though, it is possible she would have been arrested for trying to get some word of mouth going.

Yo-Yo Ma.

Additionally, topless laws have always been more lax towards men. For instance, Jerry and Kramer are certainly not going to be prosecuted for violating a public exposure law when they went shirtless at the Rangers playoff game in “The Face Painter.” However, in “The Stand In” when Phil Totola “took it out,” he could have violated New York’s public exposure laws. Showing off “that thing” is certainly going to be considered exposing an intimate part of a man. Even though Elaine and Phil were in a private car, since the frightened turtle could easily be seen through the car windows, a zealous prosecutor might try to prosecute Mr. Totola.

Other characters in Seinfeld, like Jerry’s girlfriend Melissa who walks around the apartment naked in “The Apology,” need not worry about being prosecuted for violating the public exposure law. Although Melissa exposed herself in a way that would be illegal in public, even though it was good naked, since she was in Jerry’s private apartment she is innocent of a crime. And while the naked woman in “The Contest” toppled Kramer as master of his own domain, she would not face prosecution either because she was in her own castle at the time.

Why do you think we're getting the sneak preview?

Although it is perfectly legal for women to be topless in New York City for their own personal enjoyment, this does not mean that the 1992 court ruling has gone completely unchallenged. In 2005, Jill Coccaro (also known as Phoenix Feeley) was detained by the NYPD for being topless walking around the city. She successfully won $29,000 from the New York Police Department for this unlawful detention. Notably, in 2013, the NYPD issued a memo to police officers to not arrest women under the penal code for simply exposing their breasts.

Most states now allow for women to go topless in public. There’s even a Topless Day in NYC if you wish to celebrate! But it is important that you check your own state’s law first, especially if you are playing in a tennis tournament, before baring it all. And if you do plan to go topless, think about letting George have a peek first.

I turn around for a sip of Tang and you jump out first!

 

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