Can women go topless in Ohio? The answer is fuzzy in some interpretations of Ohio law.
“This comes up every summer, because every summer, people do this,” says Michael Benza, a Case Western Reserve University School of Law professor. “There will be women who will go out and for whatever reason — whether they want to challenge the statutes, whether they just like to go topless, whether or not an accident happens — women end up facing charges under this.”
Ohio Revised Code Section’s section on public indecency states that Ohioans cannot recklessly expose private parts in public. This April, an amendment to a definition named female breasts as a private area.
Specifically, the updated definition of “private area” in Section 2907.01 includes “the genitals, pubic area, buttocks, or female breast below the top of the areola, where nude or covered by an undergarment.”
“‘Where nude or covered by an undergarment’ — that definition makes no sense,” says Benza.
The definition was written as a part of an anti-voyeurism law in the 134th General Assembly,, and it applies to most sections of Chapter 2907, which address various sex offenses, including Section 2907.09, public indecency.
That means that the law might have had an unintended consequence: A woman sunbathing topless at an Ohio public beach, for example, could be subject to prosecution. Jeff Tolman, the Communications & Outreach Manager for Cleveland Metroparks, said in an email that women displaying their breasts in public are violating Ohio’s public indecency statute.
“This is statewide, not specific to Cleveland Metroparks or our beaches,” Tolman said in the email.
“We say something in one statute without realizing it has this effect on all other sorts of statutes. That’s the problem,” Benza says. “We have so many statutes, that it’s really difficult for people to even keep track of what they all are, and to recognize it.”
The new “private area” definition further muddies the waters of an already murky gender equality issue in Ohio law. Can both men and women be topless in public?
The answer isn’t clear-cut.
“It goes back to the relative roles of gender in our law. We treat women’s bodies differently than we treat men’s bodies. This is one example of that — that the legislature has very specifically now defined private parts to only include female breasts,” Benza says.
People have challenged the Ohio law’s applications. Columbus’ ComFest successfully challenged a nudity rule in 2017, for example.
“We all know what this statute is supposed to do. Agree with it, or disagree with it; you kind of have an idea of what it’s supposed to do. The problem is trying to define what it’s supposed to do in a way that makes any sense,” Benza says. “Most of the courts didn’t want to have to address that issue.”
The updated “private area” definition’s inclusion of female breasts could open a door to prosecuting women who go topless in Ohio’s public spaces.
“Because of this change in the statute, the answer is no longer clear that this is not subject to prosecution, and women run the risk if they go topless, of being charged and prosecuted under that statute,” Benza says. “I think it is a significant change.”
It’s significant enough to have potential legal ramifications on Ohioans.
“Before, my advice to somebody would have been, if you are in an appellate district where this issue has been decided, if you’re a woman, you’re free to take off your top and not be prosecuted,” Benza says. “Now that the legislature has arguably defined it, now the courts are going to have to go back and look at it. My advice for people is, unless you want to challenge it, don’t take off your top if you’re a woman.”
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