Crime

Criminally Yours: The Naked Women In Times Square

The "naked" women in Times Square aren't really naked, and it's really not as dire a problem as it seems.

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Confronted with all the local brouhaha about the naked women in Times Square and its possible criminal aspects, I decided to walk over to 42nd Street last Saturday and see what all the fuss was about.

It’s either legal or not legal, right? But apparently, it’s a bit more complicated.

First of all, they’re not actually naked. Yes, their breasts are exposed and about everything else save for a smidgen of clothing over their genitals, but you have to look twice to even realize they’re not wearing clothes. Body paint does amazing things. (Check out “Skin Wars” on Game Show Network.)

To me, it didn’t look obscene. No one’s pandering for money with “hey, big boy” come-ons.

It all seemed pretty innocuous.

When I went on Saturday at about 6:00 p.m., there were only two attractive young women standing around with a posse of three rather imposing guys sitting nearby emanating a possessory vibe.

Most of the people wanting to be photographed with them were tourists, although not exclusively horny teens from the ‘burbs or intoxicated men (maybe that would come later). What I saw was a guy with a baby carriage, two young women visiting from Tennessee, and a non-stop crowd of gawkers like there would be for a breakdancing troupe or a juggler.

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So what is the law on this? In New York, it’s encapsulated under NY Penal Law 245.00, “Offenses Against Public Sensibilities.” To be criminalized there must be actual “lewdness,” defined as “intentionally exposing the private or intimate parts of your body in a lewd manner.” According to case law, the aim of the statute is “to prevent harm to the public’s sensibilities from the sight of a lewd act.” This obviously covers a panoply of acts from masturbation to having sex in public. Not exactly what I saw in Times Square.

In fact, there wasn’t even much curiosity. More people (I’d say at least 10 times as many) were interested in grouping like corralled sheep below the giant electronic billboard projecting live-shots of people in the plaza. They stood there for minutes on end, iPhones in hand, hoping to be pictured on the big screen. The crowd around the bare-breasted “desnudas” was tiny by comparison.

Then there’s another law, “Exposure of a Person,” PL 245.01. I’ve never seen it enforced, but it prohibits “a person appearing in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.”

It explains: “For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.”

Well, there’s the catch. If the “desnudas” are performers, they’re protected. If they’re “begging,” they’re not.

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Nobody on Saturday was soliciting or demanding money outloud, although each “nesnuda” did clasp a fistful of bills in each hand.

There’s also the “equal protection” argument. Why is the Naked Cowboy (one of Times Square’s longest-standing and best known attractions) free to bare his chest, and not the “desnudas?” What makes an areola more obscene just because it’s on a woman?

Interestingly, my trip to Times Square coincided with the annual “Topless Rally for Women” in Asheville, North Carolina. They’ve been celebrating women’s right to be topless in public for the last five years. (Judging from the news clips, it frankly doesn’t look that interesting or controversial.)

So what’s the hubbub all about? Yes, Times Square took forever to be pulled from the depths of Dante’s Second circle of hell when 42nd street was peopled only by hookers, pimps, and drug users. Yes, it’s clearly been saved from the moral morass it once was by Disney et al, and the presence of bare-breasted women and overly aggressive animated characters harassing tourists is changing that landscape. But it’s not going back anywhere near what it used to be.

So Mayor DeBlasio, use caution. Ripping up the pedestrian walk, as threatened, is overkill.

The city could adopt a local law prohibiting “exposure of a person” in a public place at any time, whether or not such person is entertaining or performing in a play, exhibition, show or entertainment.

But is that can of worms worth opening?

People are already losing interest, and my guess is no “desnuda” will be using only body paint to cover up when winter hits.

They’re getting their 15 minutes of fame and some cash to boot. In the meantime, it’s really not as dire as it seems.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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