Indecent Exposure

LFDA Editor

Committing sex acts in public or exposing one’s genitalia are illegal in New Hampshire.

  • Unlike some other states, the law in New Hampshire does not consider female toplessness an act of public indecency.
  • Breast exposure in public related to nursing a child is protected under state law.
  • New Hampshire towns do currently have the right to pass their own, more restrictive indecent exposure laws, but this is being challenged in court.

Pro: Towns should have the right to determine what is socially acceptable behavior in their communities.

Con: Bans on female toplessness are discriminatory, allowing men to exposure their chests but imposing more restrictive standards on women.

Issue Facts:

The following types of indecent exposure are illegal at the state level in New Hampshire:

  • The New Hampshire state criminal code prohibits sex acts and uncovered genitalia in public. The law is specifically concerned with lewd actions that are intentionally offensive.
  • Offenses are a misdemeanor unless they’re knowingly committed in the presence of a child under age 16, in which case felony charges can be pressed.
  • New Hampshire’s public indecency statute does not include a ban on females baring their breasts publicly.
  • New Hampshire’s RSA 132:10-d, enacted in 1999, makes clear that “breast-feeding a child does not constitute an act of indecent exposure and to restrict or limit the right of a mother to breast-feed her child is discriminatory.”

Town bans on female toplessness

State courts have gone back and forth over whether New Hampshire’s cities and towns have the power to set stricter standards for public indecency.

  • In 2015, a district court judge overturned a Gilford town ordinance banning female toplessness, finding that New Hampshire towns are not granted jurisdiction over topless sunbathing by the state Legislature.
  • Soon after, a New Hampshire House bill banning female toplessness on the state level was introduced, but it was unanimously voted down because many in the Legislature believed it would be seen as discriminatory against women.   
  • In November of 2016, the same district court judge that struck down Gilford’s topless ban upheld a similar one in Laconia.

Prosecutors persuaded the judge in the Laconia case by pointing to a state law allowing towns:

“To restrain and punish vagrants, mendicants, street beggars, strolling musicians, and common prostitutes, and all kinds of immoral and obscene conduct, and to regulate the times and places of bathing and swimming in the canals, rivers and other waters of the city, and the clothing to be worn by bathers and swimmers.”
—RSA 47:17:XIII

The attorney for the women was state Rep. Dan Hynes. He argued that lawmakers didn’t intend for the statute—mentioning vagrants and prostitutes—to be used to stop women from taking their shirts off in public. Hynes said he will support legislation to repeal that law in 2018.

In July 2017, the New Hampshire branch of the American Civil Liberties Union (ACLU-NH) filed a brief arguing that Laconia’s ordinance violates New Hampshire’s Equal Rights Amendment. They maintain that a woman going topless can be a form of speech protected by the state and federal constitutions, often expressing “pro-body” and political messages.

Federal law

There are no nation-wide federal laws defining indecent exposure. However, some forms of nudity have been deemed “expressive” and therefore protected free speech under the US Constitution’s First Amendment.

Law in other states

States define “public indecency” in a variety of ways.

  • Vermont does not specifically outlaw public nudity on the state level. Instead, it bans “open and gross lewdness and lascivious behavior.” This means that Vermonters may be totally nude in public so long as that nudity is not purposefully intended to scandalize or arouse people.
  • Massachusetts stipulates that a person can only be charged with “indecent exposure” if it can be proven that one or more persons were offended by the act.
  • Tennessee, on the other hand, is among a minority of states that explicitly outlaw “the showing of the female breast with less than a fully opaque covering of the areola” at the state level.

 

Related Issues

Free Speech

PROS & CONS

"For" Position

By LFDA Editor

 “NH towns should have the right to pass their own indecent exposure laws.”

  • Towns should have the right to decide for themselves what is socially acceptable behavior in their communities.
  • New Hampshire’s beaches attract tourists from all over the world— controversial clothing policies could keep people from coming to the beach, which could impact town revenues.
  • Women going topless in public could become the subjects of sexual harassment.
  • The state’s current definition of “indecent exposure” is too lenient and could result in children being exposed to inappropriate and troubling levels of public nudity.

"Against" Position

By LFDA Editor

“NH towns should not have the right to pass their own indecent exposure laws.”

  • Bans on female toplessness are discriminatory, allowing men to exposure their chests but imposing more restrictive standards on women.
  • A patchwork of different town rules regarding indecent exposure would lead to confusion, so these policies are best left to the state to decide.
  • Removing the stigma around public toplessness will promote self-confidence and help dismantle “rape culture” attitudes.
  • No one is physically harmed when a woman exposes her breasts in public— we should not allow towns to create “victimless crimes.”
  • Enforcing strict indecent exposure laws would waste town law enforcement resources that could be better used combatting more serious problems.

LEGISLATIVE HISTORY

Killed in the House

Permits the state and municipalities to adopt rules and ordinances regulating attire on state and municipal property, particularly when sunbathing.

Killed in the House

Criminalizes toplessness for women, with an exception for breastfeeding.

Signed by Governor

Increases the criminal penalty for purposely fornicating, exposing genitals, or performing any other act of gross lewdness while in the presence of a child less than 16 years of age from a misdemeanor to a class B felony.

Should NH restrict the power of towns to pass their own indecent exposure laws?

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Issue Status

A challenge to a Laconia ordinance banning female toplessness is currently being heard by the NH Supreme Court.

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