Judge Rules Breasts are Not “Private Parts”

Judge Mark Painter, a judge on the Ohio Court of Appeals, sent in a couple of his own funny opinions. The first one he wrote back when he was a municipal court judge. Lawhaha.com clings steadfastly to being a family friend site, but it’s not easy when a primary source of Strange Judicial Opinions is that haven for adult-oriented material known as the National Reporter System.

In State v. Parenteau, the defendant was charged with public indecency.  We’ll let Judge Painter explain what happened:

Defendant was part of a “lingerie fashion show” at a nightclub named “Scandals” in western Hamilton County. The charge arose from the modeling by defendant of a lace brassiere which was alleged by the officer to be “see-through,” in that the officer testified he could observe a nipple area through the lace fabric. Defendant was apprehended after she had retired to a back room to change her clothing. The officers asked Parenteau for the clothing she was wearing, which they confiscated.

The evidence produced in court included a lace brassiere, a pair of underpants, stockings, and a small square of pantyhose fabric. The panties and stockings were not relevant, considering that the charge was not based upon anything in connection with the defendant’s lower anatomy. Defendant testified that she wore the pantyhose fabric under the bra in order to be certain that it was not transparent in the area of the nipple. Defendant further stated that she was wearing two such squares, one on each breast, during the performance, but that only one was in evidence, since she had already removed her bra when she was arrested, and the other square had dropped out and was not recovered by the officers. An additional witness testified that she saw defendant cutting pantyhose to make the squares before she dressed. Much ado was made about whether one or two squares were worn, but in the court’s view of the law, the existence or nonexistence of the pantyhose material within one side of the brassiere is not controlling.

The question presented is whether the defendant can be convicted of public indecency … for wearing a lace brassiere which totally covered her breasts, but was partially transparent, or “see through.” If so, does the insertion of pantyhose material, rendering the brassiere less “see through,” change the result?

The result turned on the meaning of “private parts” as used in the public indecency statute. Judge Painter cited numerous sources supporting the proposition that “private parts,” as used in the law, refers to the genital area only. As such, he acquitted the defendant.

State v. Parenteau, 564 N.E.2d 505, 505 (Ohio Mun. 1990).

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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