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Exposing a wrinkle in Idaho's indecency laws

by CRAIG NORTHRUP
Staff Writer | June 2, 2021 1:07 AM

If you’re uncomfortable reading the words “breasts” or “genitals” in your daily newspaper over your cup of morning coffee, you might want to consider moving on to another story.

If you’ve chosen to keep reading, please know: I did not walk into work Tuesday morning with plans of researching the legal history of Idahoans’ private parts. But I’ve since studied breasts so disproportionately to Tuesday’s eight-hour shift that I’ve almost certainly been flagged by the Hagadone Corporation’s IT department.

And why? Multiple reports came into the Coeur d’Alene Press Monday of women enjoying Memorial Day while sunbathing topless on the city’s local beaches.

The scene caused enough of a stir to get shocked-and-awed readers to call into The Press to complain.

Idaho has often relied on the state’s indecent exposure law — Section 18, Chapter 41-16 of Idaho Code, to be precise — to limit who can show what, where. The law reads:

“Every person who willfully and lewdly, either (1) exposes his or her genitals, in any public place, or in any place where there is present another person or persons who are offended or annoyed thereby; or (2) procures, counsels, or assists any person so to expose his or her genitals, where there is present another person or persons who are offended or annoyed thereby is guilty of a misdemeanor.”

Repeat offenders are potentially eligible to be prosecuted for felonies.

The law specifically exempts women who are breastfeeding or pumping for breastmilk in order to feed children, and that’s where things get legally interesting. Inclusion of a breastfeeding exemption — passed in 2018 — implies that lawmakers wanted to otherwise-prohibit the exposure of breasts in public, according to chief civil deputy city attorney Randy Adams.

"'Genitals' is not defined in 18-4101, but the word clearly contemplates the female breast since there is an exception for breastfeeding," Adams said. "The Oxford Dictionaries seem to restrict the word to the external reproductive organs, and medical dictionaries exclude the upper half of both men and women’s bodies."

In other words, breasts aren’t genitals. They never have been.

Technically, showing breasts doesn’t violate the indecent exposure statute of Idaho code. Troy Tymesen, city administrator, said the specific language is taking the city down a curious legal course.

“The court system has been looking at this for a while,” Tymesen said Tuesday. “‘What is obscene?’ ‘What is lewd?’ ‘What direction are we supposed to go with this particular question?’ But it doesn’t violate the indecent exposure law.”

Whether or not a woman exposing her breasts is absolutely legal is up for debate. Section 18’s Chapter 41 condemns public nudity, but only in concert with overt sexual acts.

Chapter 15 of Idaho Code, which addresses the protection of children and vulnerable adults, prohibits the dissemination of obscene materials and obscene performances to minors. That includes the live exposing of female breasts “with less than a full opaque covering of any portion thereof below the top of the nipple …”

Nevertheless, the hubbub over the weekend reports swirled online, with many planting flags on both sides of the issue: Some consider the acts of the sunbathers as criminally immodest.

“This definitely is not a family town anymore,” one wrote on Facebook. “So sad to see how much Coeur d'Alene has changed. My little kids don’t need to see that crap. Modesty is so rare today it’s sad. I’m so tired of seeing people being so inconsiderate of others.”

Others expressed displeasure over the double-standard imposed on women while men routinely get a social pass to walk around topless. It’s a double-standard that wasn’t lost on Zoe Marie Capes of Coeur d’Alene.

“Up until the mid 1930s, it was illegal for men to go topless in public,” Capes told The Press. “Yet they protested, as is their American right to do, according to the constitution, and fought the laws to make change. The social stigma died out because — as a society — we decided going topless wasn't a big deal. Now it is perfectly acceptable for men to walk around city streets shirtless without anyone batting an eye.”

The hypocrisy drew enough ire that Capes and others are talking about a Free The Nipple march, but talks of that particular protest are still only in the conversation stage.

“I would love for there to be a Free the Nipple March here,” she said. “The negative societal stigma of women's breasts needs to end … Those women on the beach weren't sexualizing themselves or asking for attention. They were simply at the beach existing in their natural bodies.”