Woman Topless in Public Not Indecent Exposure Says MN Supreme Court
Last week, the Minnesota Supreme Court weighed in on whether a woman walking around a gas station parking lot exposing her breasts was indecent exposure. The high court determined it was not indecent exposure and reversed the woman’s conviction.
In its decision, the court focused on whether the woman’s actions were “lewd” exposure. Because Minnesota Statutes do not define the term, the court spent several pages on statutory-interpretation analysis. The court determined “lewd” is ambiguous. Ultimately, the court “declined to interpret ‘lewdly’ to mean ‘obscene,’ ‘indecently,’ or ‘lustfully,’”. It concluded that “lewdly” refers to conduct of a sexual nature. In this case, the woman was merely walking around topless and exposing her breasts. There was nothing sexual in nature about it. “[N]one of the evidence in the records suggests her conduct was of a sexual nature.”
Interestingly, the Minnesota Supreme Court noted that the prosecution charged “only under subdivision 1(1), alleging that she willfully and lewdly exposed her breasts.” There are two other clauses under the subdivision to constitute indecent exposure: (2) procures another to expose private parts; or (3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision. Subdivision 4 gives an exception for breastfeeding, btw. Had the prosecution charged the topless woman under subdivision 3, would the supreme court decide the case differently? It seems that the high court would interpret “gross lewdness or lascivious behavior” similarly to the analysis in this opinion. But, what about the catchall of “any public indecency other than behavior specified in this subdivision”? Would a woman walking around a gas station parking lot topless be considered a “public indecency”? One can imagine a set of facts coming to the high court at some point, if the legislature does not amend the statute in the meantime.
Several amici took part in this appeal. On behalf of the appellant, Gender Justice, MACDL, the ACLU, and Fredrikson & Byron supported the public defender’s efforts. While it is not unusual for cases at the Minnesota Supreme Court to receive amici support, you have to believe the justices take notice when so many different organizations come to support. Here, the support was pronounced and secured the victory.
Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota and Wisconsin. Super Lawyers named him a Super Lawyer for the past four years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. Criminal Defense Attorney Woodbury, Criminal Defense Lawyer Minnesota, Criminal Defense Lawyer Wisconsin.