Roger writing the LAWmag
14
Jun 2009

Holy Aureole: The Female Breast and the Law

Enshrined as the icon of art, love, health, youth or sex, depending on who you ask, the woman’s breast is also the law’s most regulated body part.

Canada’s Criminal Code touches the issue but never pins it down.

Indecency is outlawed at §173(1) but the Code does not define it! Nudity is outlawed at §174 but, again is defined only in reference to being:

"... so clad as to offend against public decency or order".

Even a reference to exposing genitals at §173(2), is made a crime only if done for "a sexual purpose".

Romance pocketbook coverSo, after years of equivocating, the Courts have taken Parliament up on their suggestion and slowly, but undeniably, the fabric of law is being peeled off the female chest.

Go Gwen Go!

In R v Jacob, the Ontario Court of Appeal carefully studied the evidence, that Gwen Jacob:

".... on July 19, 1991 an extremely hot, humid summer day, ... walked along several Guelph streets with uncovered breasts. Along the way she was seen by and spoke to a number of people, including three police officers. (They) asked the (Ms Jacob) to cover her breasts. (She) responded by telling him that since males were permitted to be in public with their chests uncovered, she had a constitutional right to walk on the street topless as well. Further, she stated that it was more comfortable in the heat to walk topless. (Ms Jacob) noticed two topless males walking down the street and asked Constable Wicinski why she was not arresting them. Constable Wicinski replied that 'society doesn't view that as that act being wrong.'

"Another police officer ... located her sitting on the porch of a Guelph residence without her top on. She refused his request to put on her shirt as she said it was her right to expose her breasts. He said that there were five or six young males sitting on a nearby porch drinking beer and watching the appellant with binoculars."

In a long decision, the Court acquitted Ms Jacob adding:

"There was nothing degrading or dehumanizing in what (Ms Jacob) did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her."

Where's The Sex?

As far back as 1975, the Supreme Court of Canada, in Bennett, adopted these words:

"... the Code clearly has dealt with nudity in a public place and ... the phrase indecent act connotes something more active, with greater moral turpitude than the mere state of being nude in a public place."

In R v Hecker, which features an unusual venue for a public nudity case (Yukon!), Justice Stuard wrote:

"Public nudity by itself is not an indecent act. To be an offence ... the unclad person must act in a base or shameful manner."

In Skinnydipper Services Inc., the Federation of Canadian Naturists took out a permit to rent a local wave pool, once a week, where adults would frolic au naturel. The rental was late in the evening and the group took the precaution to close the pool window blinds. But locals got wind of it and the litigation was on.

Justice Williamson of the British Columbia Supreme Court ruled that the City of Surrey had been wrong in denying a rental permit to the nudists adding:

"Nudity is defined by Parliament. The offence in the Code does not apply to persons who are on private property and not exposed to public view."

Maple Ridge, a small city near Vancouver, had a by-law that read:

"... males and females shall fully cover the genital area with opaque apparel and that females over the age of 8 years shall fully cover all portions of their nipples and aureole with opaque apparel."

On July 1, 1997, Linda Meyer showed up at the local pool wearing the bottom half of her bikini only. Some young girls were in the pool celebrating a birthday party and the parents were spooked. Meyer was charged with violation of the by-law but Justice Holmes quashed the by-law writing that:

" I do not find in the evidence support for the view that the parks could not operate in orderly fashion if a female were to bare her breasts in a circumstance that did not offend criminal laws of nudity."

In R v Riendeau, Melanie Riendeau was a waitress in a topless bar. She made the mistake of briefly stepping outside to speak with two friends when local police officers just happened to be cruising by. She was charged with indecency but was acquitted when Justice Massé ruled that there was nothing sexual about her brief moment of public nudity.

Nudity 4, Puritanism 0

Still, while the female breast rises above the criminal law, the definition of indecency remains in the hands of judges. In Hecker, Stuard added:

"In each case the act must be assessed in all of the circumstances, and weighed against the general community standard. The quality of indecency is not absolute, it is relative. Relative to the particular taste of the immediate community and to the evolving mores of a society. Unanimity rarely characterizes the public perception of obscenity, nudity or sexual behaviour. The differences in public opinion concerning the parameters of decent behaviour are naturally prevalent among Judges. Thus similar acts may be found by different Courts to have a different legal character."

Streaking is a good example of uncertain morals. In R v Springer, the streaker was acquitted of indecency for streaking at a Saskatchewan Roughriders football game. But in R v Niman (Ontario), the streaker was convicted.

The judicial movement to decriminalize the exposed female breast is not without some protest. Some argue that the female breast is a sexual body part and that the mere exposing of it dilates the pupils of men and, thus, sexual.

Others note that in spite of the state of the law, very, very few women expose their breasts in public; and that even dedicated nudists only do it in private. This is perhaps a far louder shout of Canadian public morality.

So, while the Puritans throw clothes on the nudists, Canadian law on women mid-riffs set free to the wind will remain what the well-gowned army of Canadian judges has deemed it to be: if it is not done for sexual purposes, it is not a crime for women to expose their chests in public.

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