Woman legs walking on the beach sand

Expert Witness Opines in Toplessness Trial

Written on Thursday, November 1st, 2018 by Kimberly DelMonico
Filed under: Expert Opinions

In Ocean City, Maryland, a legal battle is being fought over a woman’s right to bare her breasts on the beach.

The controversy began when Chelsea Eline (formerly Covington) wrote to the Worcester County State’s Attorney for a legal opinion regarding female toplessness in public areas in the state.

Ocean City then passed an emergency ordinance prohibiting females from baring their breasts in public within city limits. Violators were subject to a fine up to $1,000.

Civil Rights Suit Filed

Civil rights attorney Devon Jacob filed a suit on behalf of Eline and four other plaintiffs in federal court, requesting a preliminary injunction to end the restriction pending the resolution of the lawsuit. The plaintiffs argued that they have “legal right to be bare-chested, in public, in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding.”  The court denied the request for a preliminary injunction, but granted an extension to enable the plaintiffs to gather additional expert testimony.

Ocean City argued that “[t]hey seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and likely will not tolerate nudity in such a densely-populated and wholesome tourist setting as Ocean City and its beaches.”

The plaintiffs retained Debby Herbenick as an expert witness to support their case. Herbenick is a professor and director of the Center for Sexual Health Promotion at Indiana University. Herbenick filed a seven-page report in support of the plaintiff’s cause.

Expert Report

Herbenick provided four reasons as to why Ocean City’s ordinance should be removed:

First, Herbenick said that “the ordinance fails to recognize important similarities between female and male breasts.” According to Herbenick, the ordinance does not consider age, puberty, medical procedures or conditions that impact the appearance of male and female breasts. Herbenick claims that the variety of shapes and sizes of breast shapes make men and women very similar and “it is simply not true that only female breasts are erogenous or erotic. Both female and male breasts/chests may be considered erotic or sexy.”

Second, Herbenick states that Ocean City’s ordinance overstates the sexualization differences between male and female breasts and chests. Herbenick claims that the primary difference between the two is that female breasts can produce milk for babies, but mentions that women spend only a short part of their lives breastfeeding.

Herbenick’s third point is that seeing women bare-chested in public is not “unpalatable” in modern America. She cited to peer-reviewed scientific research to argue that public sensibilities on this issue have changed in recent decades.

Herbenick’s fourth point is that not treating men and women equally in allowing both to appear bare chested in public may contribute to harmful secondary effects, such as the over-sexualization of girls and women.

Herbenick wrote, “In terms of what may be considered ‘unpalatable,’ it is my professional opinion that the public would generally find it unpalatable to ask police (who tend to be mostly male) to focus their attention on females’ breasts/chests in an effort to evenly enforce an ordinance that prohibits barechestedness.”

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

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