Going Topless at Pennsylvania Beaches

Most people have probably read recent articles about women going topless at the beach in Ocean City, Maryland. I suspect that some people are curious if it could happen in Pennsylvania. The law that was discussed in Ocean City was Indecent Exposure. In Pennsylvania, the Indecent Exposure law generally prohibits a male or female from exposing “genitals” in public. While the term “genitals” is not expressly defined in the law, cases have generally limited the term to refer to the penis or vagina. For example, in the case of Commonwealth v. DeWalt, 752 A.2d 915 (Pa. Super. 2000), the Superior Court overturned a woman’s conviction of Indecent Exposure when the woman the onlookers only viewed the woman’s breasts and did not view her nether regions.

Pennsylvania Open Lewdness

While going topless may not be considered Indecent Exposure, that does not mean that it is legal in Pennsylvania. The Open Lewdness law, under 18 Pa.C.S.A. § 5901, states that it is illegal for a person to commit “any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.” The law basically has two elements or factual requirements in order for a person to be charged and then convicted of Open Lewdness.

One requirement is that the activity must likely affront or alarm someone. Obviously, if a woman goes topless at a recognized or posted nude beach, then the people at that location are not likely to be affronted or alarmed. However, if the woman was at a family beach, then it is likely that the beachgoers would be affronted or alarmed.

The second requirement for an Open Lewdness charge is that the person must have committed a “lewd act.” The phrase “lewd act” is not defined by the law, but Pennsylvania courts have interpreted the phrase to require conduct that: 1) involves public nudity or public sexuality, and 2) represents such a gross departure from accepted community standards as to rise to the level of criminal liability. Legal definitions and interpretations like this fall into what I call a gray area of the law, meaning there are no clear legal or black and white lines as to what is or is not illegal. What one person may consider a “gross departure from accepted community standards” is often different from another person’s standards. For example, everyone would readily agree that a person running completely naked would be Open Lewdness. However, what about a man that was walking in public in a T-shirt and underwear? In the case of Commonwealth v. Williams, 574 A.2d 1161 (Pa. Super. 1990), the Pennsylvania Superior Court held that such conduct was not Open Lewdness. Amusingly, the court even noted that the man was wearing “elastic tight-fitting briefs,” which I believe most of us now call tighty-whiteys.

While wearing tighty-whiteys in a parking lot may not be Open Lewdness, I do believe that most people would find a woman going topless to be a “lewd act,” so I would not recommend that any woman try it at this time on a family beach. If you want to go topless, go to a nude beach or some other area where people are not likely to be offended. If a woman did go topless and was charged, the case would ultimately go to a jury. It would be the prosecutor’s burden of proof to convince all twelve jurors that going topless was a “lewd act.” If one juror was not convinced that going topless was a lewd act, then the verdict would not be unanimous, and the jury would be hung. While the defense lawyer and the client would prefer a unanimous not guilty verdict, anything short of guilty is a win.