By GAIL OBER, LACONIA DAILY SUN
CONCORD — To free or not to free the female nipple came before a public hearing Monday morning of the New Hampshire House Criminal Justice and Public Safety Committee in the form of House Bill 1525-FN.
The bill, which would make exposure of the female nipple a misdemeanor, is sponsored by Belknap County representatives Brian Gallagher, R-Tilton and Sanbornton, Rep. Peter Spanos, R-Laconia and Rep. George Hurt, R-Gilford and Meredith and seeks to criminalize the exposure of the female breast in public with the exception of breastfeeding.
Gallagher and Spanos both said in their testimony that they were responding to a number of constituent complaints in the wake of two women being cited for violating the Gilford Town Beach ordinance on Sept. 6, 2015.
The case against Heidi Lilley of Gilford and Barbara MacKinnon was dismissed by 4th Circuit Court, Laconia Division Judge Jim Carroll who said that since it is not illegal in the state criminal code and therefore Gilford's ordinance is unenforceable.
Gallagher is the lead sponsor and he testified that "there are moms and dads who live in New Hampshire with young children, as well as grandparents with grandchildren who struggle with this public conduct and (evolutionary) challenge to family values."
He said that men and women are psychologically and physically different and this goes back to "the beginning of time." Gallagher also said he feared female toplessness would be a trend, a slippery slope that could lead to unintended consequences.
"To allow topless sunbathing creates a precedent," said Spanos during his testimony. He said the goal is not to go back in a time machine but to make people know that it's something "we" don't want to see.
Hurt did not attend.
Members of the committee had a number of questions for Gallagher and Spanos, including what activities topless sunbathing would lead to. Spanos said Europeans have their own way and "New Hampshire has different standards."
"Once the genie is out of the bottle, we can't go back," Spanos said.
Although Laconia and Gilford are two of the few, if any other, municipalities in New Hampshire that have an ordinance preventing toplessness for women, no one from either community was at the hearing to defend their ordinances except Spanos.
There were, however, a number of people, including Lilley, McKinnon and their attorney, Daniel Hynes, who were there to speak against Gallagher's bill.
Hynes told committee members that if they were to recommend this bill for passage they would be "criminalizing being female." He said the only way this is enforceable under the equal protection clause in both federal and state constitutions and the free speech amendments is for the state to make toplessness for men unlawful as well.
When asked by the committee's ranking Democrat Laura Pantelakos, D-Portsmouth, what they should do if a majority of people at the beach don't want topless women there, Hynes responded by saying the First Amendment doesn't address majorities.
Gilles Bissonette of the New Hampshire American Civil Liberties Union (ACLU) said if going topless at the beach is made a criminal offense, by law a second offense would constitute a Class B felony that can be punishable by up to seven years in jail and the offender would have to register as a sex offender for life.
He said toplessness is considered free speech in that it is conduct that conveys a message, is against gender equality, and is overbroad as there is no harm. He said that amending the criminal code makes female political speech for toplessness a sex offender statute.
When Rep. John Burt, R-Hillborough, asked about Carroll's ruling that banning topless women was constitutional, Bissonette said that while he has the utmost respect for Carroll, in this case he thinks the ruling was wrong.
Others said that banning toplessness for women and not men is hypocritical because the state is contemplating banning something for women only and yet preaching to the Muslim countries in parts of the Middle East that the burka or hijab is discriminatory.
One man testified that he is more offended by people brandishing their weapons in public than he is by topless females at the beach.
Lilley said HB 1525 is a solution to a problem that doesn't exist. She said that children don't even notice these things.
"They look and go about their business," she said.
Lilley also said she has heard that women being topless at the beach leads to rape.
"Rape happens," she said, adding that she had been assaulted twice as a young child and both times she had on clothes.
She said rape is about power and urged them not to take women's powers and make them worse.
Others, men and women, said it is discriminatory.
"I have the right to be where a man can be," said Keri Barnes, who said she is a grandmother, a mother, a daughter, a wife and a sister.
Barnes said she had been all over the state and gone topless but the only bad encounter she had was in Gilford. She said she was also abused as a 6-year-old and didn't even have breasts and this was no time to criminalize the female breast.
"We are not lunatics or radicals," she said, noting that the legislators they should not be alarmed by the human form at their ages.
Testimony ended after two hours. When Gallagher was asked if he would consider amending his bill to include men as well as women, he said he would have to think about it.
The committee will meet in an executive session and determine the fate of HB 1525-FN within the next two weeks.
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