They Were Naked and They Were Not Arraigned

Flipping through the first volume of Fr. Neuhaus’ The Best of the Public Square I happened upon this diverting item from the December 1994 While We’re At It:

“The Politics of the Breast” is an opinion piece in the New York Times advocating the right of women to go bare-breasted on the subway. Two years ago the New York Court of Appeals ruled that the state laws against indecent exposure could not be enforced against women who wish to be topless in public. Judge Vito J. Titone wrote that differential treatment of female bodies violated constitutional guarantees of equality and was “rooted in centuries of prejudice and bias toward women.” One suspects he meant to say against women. A certain delicacy about the display of the female body in public is indeed rooted, apparently from the beginning of the species, in an enthusiastic male prejudice and bias toward naked women. Such considerations seem to carry little weight with the court, however. If human nature and the edicts of the court are in conflict, human nature will just have to change. Mayor Giuliani, being a generally sensible fellow, says the transit police will continue to arrest bare-breasted women on the subway. A police spokesman explains that, in the close press of subway travel, a “very, very attractive” topless woman could create excitements that would pose a public danger. Some subway patrons, he opined, could become so distracted that they might fall down escalators or even onto the tracks. The Times writer is buying none of it. She scoffs at the idea that “the power of the female breast is such that it can lure its beholders to untimely demise in subterranean channels.” She concludes that the bare-breasted subway rider is making the point “that her breasts belong to her and not to the onlookers.” It is not, however, the proprietorship but the public display of the items that is in question. To be fair to the writer, this is a man thing and it is perhaps understandable that she just doesn’t get it. Her argument and that of the New York court, however, do helpfully illumine why it is so very difficult to make a case for public decency. The concepts of decency and indecency turn upon what is offensive. Today, unless you are a member of a certified victim group, you have not the right to be offended. If you are offended or, as in this case, aroused, the fault is with you. The fun for the more aggressive members of the certified victim group is to taunt and provoke you into protesting what they say or do, thus confirming that they are victims and you the victimizer. But this is old hat by now. And for all the media chatter about bare-breasted subway riders, we know nobody who has seen one to date. One expects it’s not for the lack of looking. In any event, the ancient maxim is again vindicated that those whom the gods would destroy are, if madness be the sign, disproportionately New Yorkers.