Female toplessness can be successfully defended in Virginia, says Fairfax criminal lawyer

Female toplessness is prosecutable in Virginia, but can be defended at the very least on claims that the display is non-obscene. As a Fairfax criminal lawyer, I was interviewed on this topic by Newsy Television, which broadcast this segment on August 23, 2022, which can be viewed here. On the one hand, the governing appellate courts for Virginia have not yet accepted that Equal Protection guarantees under the Constitution’s Fourteenth Amendment bar criminalizing exposed female breasts,  On the other hand, the Fairfax chief prosecutor — and the county police — as well as the numerous other Virginia chief prosecutors proclaiming themselves to be progressive will hopefully recognize the bad public relations they will cause for themselves to put women through such prosecutions in this day and age that continued support and protection for equal rights among women and men.

How is female toplessness a crime in Virginia if female breasts are not directly mentioned in the state’s indecent exposure statute?

Virginia’s indecent exposure criminal law does not say female toplessness can be a crime. However, caselaw and the breastfeeding exemption in the commonwealth’s following indecent exposure statute mean prosecutors can go after toplessness “Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.” Virginia Code § 18.2-387. Although the Virginia statutory definition of the foregoing “private parts” definition does not address toplessness, a 2-1 Virginia Court of Appeals panel in 1994 (affirming a conviction for a man’s exposing his buttocks and pubic hair) interchanged the “intimate parts” definition with the “private parts” definition, with the former statutory definition including toplessness: “‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person, or the chest of a child under the age of 15.” Virginia Code § 18.2-67.10. See Hart v. Virginia, 18 Va.App. 77, 79 (1994).

What led to the recent Newsy television indecent exposure interview with me?

Three years after the fact, Newsy television decided to interview me in the light of the 2019 federal appellate court decision affirming an injunction against a municipal anti-toplessness ordinance, based on heightened Equal Protection scrutiny under the Constitution’s Fourteenth Amendment, and the inability of the municipality to overcome that scrutiny where the challenger Free the Nipple’s expert witness testified to no adverse consequences to children’s seeing non-sexualized female breasts and where two other jurisdictions in the same state (and various jurisdictions in other states) allow female toplessness without any evidence of harmful fallout. Free the Nipple v. Fort Collins, 916 F.3d 792 (t0th Cir) (2019).

What does Virginia appellate caselaw say about Equal Protection for female toplessness?

Unfortunately, Virginia appellate caselaw to date okays criminalizing female toplessness despite Equal Protection arguments. Boyd v. Henrico, 42 Va.App. 495 (2004) (en banc). Particularly disturbing about Boyd is that the bared breasts in that case were in a strip club, where patrons want to see such displays, versus nudity on the public sidewalks where some might be offended by seeing barebreasted women. On top of that, the convicted women were wearing pasties on their nipples. (Boyd involves a more anti-topless law than the Virginia indecent exposure law, with the applicable county ordinance banning “showing of the female breast or any portion thereof below the top of the nipple, or covering of the breast or any portion thereof below the top of the nipple with less than a fully opaque covering.” Boyd. 

What should I do if prosecuted for alleged indecent exposure in Virginia?

Indecent exposure is a Virginia Class 1 misdemeanor carrying up to a year in jail, whether for female toplessness or bared genitilia or buttocks. Such prosecutions should be fully fought, including challenging whether the “obscene display” element of the statute has been violated. “The word ‘obscene’ where it appears in this article [the same article as for Virginia’s indecent exposure ban] shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.” Virginia Code § 18.2-372. See also Miller v. California, 413 U.S. 15 (1973), and Barson v. Virginia,  58 Va. App. 451 (2011).

Why is Fairfax criminal lawyer Jon Katz well suited to defend this and all other types of sex-related criminal prosecutions?

For years, I have not only defended many people charged with sex-related crimes, but have also represented strip clubs, adult video stores, adult Internet sites, swingers clubs and BDSM (bondage, domination, sadomasochism) clubs. When it comes to alleged sexual interests, I have heard it all, to a point, and will fully and non-judgmentally defend you in against this and all other Virginia criminal prosecutions.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Call 703-383-1100 for your free in-person initial consultation with Jon Katz about your court-pending criminal or DWI case.