No law bans women

from going topless

Question: I recently was at the Ewa end of Ala Moana Beach where there was a woman with her top off. Thinking she might be a tourist, I mentioned to her she might get arrested. She thanked me but did nothing to cover up. A lifeguard soon came up and spoke with her. He left, and she still didn't put her top on. Later, I was in the water and she came in.

We chatted; she lives in Honolulu. She told me there is no law requiring women to cover their breasts and that lifeguards are instructed to ask women to put their tops on, but they have no enforcement authority and police aren't called because no law is being broken. Is this true?

Answer: Hold on to your hat -- if not your top: The woman was basically correct.

There is no state or city law prohibiting women from baring their breasts in public, acknowledged Capt. Carlton Nishimura, of the Honolulu Police Department. He double-checked with the city Prosecutor's Office to make sure.

There are laws against indecent exposure and open lewdness, both petty misdemeanors, but they don't cover women's breasts, so to speak.

Under Hawaii Revised Statutes 707-734, it says, "A person commits the offense of indecent exposure if the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the actor's conduct is likely to cause affront."

Breasts are not genitals, which are defined as the reproductive or external sex organs.

HRS 712-1217 says: "A person commits the offense of open lewdness if in a public place the person does any lewd act which is likely to be observed by others who would be affronted or alarmed."

Nishimura points out that this law "doesn't say anything about (exposing) genitals or breasts."

Someone could be topless and commit a lewd act, but sunbathing topless of and by itself wouldn't constitute lewdness, he said.

What would happen if someone complained that a topless woman in public was offensive?

"We would probably go up (to the woman) and explain that people are alarmed, but in actuality there is nothing we can do to force them to cover up," Nishimura said.

Police could possibly base an arrest on disorderly conduct, but he doubted that charge would stick because "it doesn't fit the statute." He also pointed out that breast-feeding in public is not against the law and that there also are constitutional issues involved, since men go topless all the time.

The Prosecutor's Office suggested that "if people have a problem with it, they contact their legislators or city councilman" to change the law, Nishimura said.

Ralph Goto, administrator of the city Ocean Safety and Lifeguard Division, said it is true that lifeguards don't have any enforcement powers.

If there is a complaint, lifeguards would call the dispatch office, which would then call HPD, he said.

"All we can do is advise. ... We do our best to advise people" if there is a complaint, Goto said.

But while women going topless might be a distraction, it "is not a problem," he said.



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