Minnesota Supreme Court: Female breasts are not lewd or inherently sexual and can be exposed in public

Police officers in Rochester were called to the Kwik Trip parking lot in July 2021 because Eloisa Plancarte had her shirt pulled up, revealing her breasts.

Plancarte was known to officers; they had already charged her twice that week with indecent exposure, once for exposing her underwear, once for exposing her breasts and underwear.

When the cops approached her, they asked why her breasts were out. She told them she was a stripper at a biker bar and that “all the Catholic girls do it.”

She was placed under arrest and charged with misdemeanor indecent exposure for willfully and lewdly exposing her private parts. Plancarte challenged the charge, arguing her breasts are not private parts and, even if they are, there was nothing lewd about exposing them.

The Minnesota Supreme Court has now agreed with her.

In overturning District Court and Court of Appeals decisions, the state’s high court ruled last week that there is nothing illegal about a woman having her breasts out in public in Minnesota, as long as she is not engaging in sexual activity.

The 20-page opinion written by Justice Karl Procaccini and an 11-page concurring opinion by Justice Sarah Hennesy presented a dissertation on the wording of Minnesota legal statutes and the hypocrisy of state laws pertaining to women’s bodies.

Indecent exposure is an obscenity in Minnesota and laws preventing it keep people from willfully exposing their body “lewdly” or showing their private parts or the private parts of another person. It also prohibits anyone from engaging in sexual behavior in public. Breastfeeding was already exempt from the law.

Procaccini’s opinion discussed what, exactly, Minnesota meant by using the word lewd to prohibit indecent exposure.

The origins of Minnesota’s law date to 1885 when the Legislature decided to borrow elements of the New York penal code. The New York law was based on English common law which defined lewdness as “the irregular indulgence of lust or other sexually oriented behavior that is indecent or offensive in a public place.”

Procaccini wrote that, because lust and indecency are ambiguous terms often left to the beholder, lewd behavior in Minnesota’s legal statutes “refers to conduct of a sexual nature.”

Was Plancarte‘s conduct of a sexual nature? The Supreme Court ruled that it was not.

“Although the police reports establish that Plancarte was charged with indecent exposure three times in one week for exposing some combination of her breasts and underwear, none of these reports provide any insight into the nature of her exposure during those incidents,” Procaccini writes. “Moreover, the officer’s body-worn camera footage does not capture Plancarte engaging in any conduct of a sexual nature.”

He added that Plancarte admitting to being a stripper and that her comment about Catholic girls raises questions about her mental state at the time of the arrest, not the inherent sexual nature of her conduct.

The lack of sexual conduct means the exposure of her breasts was not lewd, the opinion says, and since it wasn’t, there is no need to determine if breasts are private parts under the statutory language of indecent exposure.

Hennesy, in the concurring opinion, wrote that clarifying whether female breasts are private parts “could provide concrete guidance for law enforcement and promote consistent, nondiscriminatory application of the law.”

Her opinion determined that multiple dictionary definitions clearly show that “private parts” refer to genitals, which Hennesy notes are “a person’s reproductive and excretory organs” and breasts do not fall under those categories.

The Court of Appeals decision affirming Plancarte’s arrest had argued that even with that definition, issues remained. Because state law makes a separate category within the indecent exposure statute for breastfeeding, it would seem that the Legislature wanted to differentiate between a woman exposing her breasts for that reason vs. exposing them in general.

Hennesy disagreed.

She pointed to a separate law around the dissemination of nonconsensual images which clarifies the difference between “private parts” and “intimate parts.” That statute defines intimate parts as “the genitals, pubic area or anus of an individual, or if the individual is female, a partially or fully exposed nipple.” A statute pertaining to sex crimes similarly includes the breast as being an “intimate part.” That differentiation, Hennesy wrote, means the Legislature could have included a woman’s breast as being a private part in indecent exposure laws.

Just as importantly, Hennesy wrote: “Interpreting ‘private parts’ to include female — and not male — breasts would lead to the continued stigmatization of female breasts as inherently sexual and reinforce the sexual objectification of women.”

Hennesy included several examples from across the country of organizations fighting to desexualize women’s breasts and nipples to remove the “engrained stereotype that the primary purpose of women’s breasts is sex, not feeding babies.”

While she agreed with the decision in Plancarte’s case, Hennesy worried that future cases about women exposing their breasts in public “may not be so clear” because people can disagree about what constitutes conduct of a sexual nature.

“If a woman exposes her breasts while dancing, is she engaged in conduct of a sexual nature?” Hennesy asked. “Does the determination depend on the way she is dancing?”

She also wondered about instances involving transgender people or a breast cancer survivor who has had a mastectomy. Other states have sought to end this sexualization of women and girls by deciding that female breasts are not private parts.

“The sky did not fall in those states,” Hennesy writes, “nor do I think it would fall here.”

Only Procaccini joined her concurring opinion.