Minnesota Supreme Court reviews indecent exposure conviction of woman who went topless

The Minnesota Supreme Court contemplated questions about gender equality and public nudity on Tuesday as they heard arguments about the conviction of a woman who exposed her breasts in a Rochester gas station parking lot.

Adam Lozeau, a public defender representing Eloisa Plancarte, argued that his client should not have been convicted because women’s breasts are not considered “private parts” within the indecent exposure statute.

“She didn’t expose a prohibited part of her body, so her conviction in particular has to be reversed,” Lozeau said.

Plancarte was charged and later convicted of indecent exposure in July 2021 after police said they found her exposing her breasts in a Kwik Trip gas station parking lot. She was also charged with fifth-degree drug possession after police found cocaine in her purse. Plancarte was sentenced to 90 days in jail for misdemeanor indecent exposure, and given a stay of adjudication for the drug charge.

Plancarte challenged the indecent exposure conviction before the state’s Court of Appeals, arguing she had the same right to expose her chest in public as men. A three-judge panel of the court rejected her appeal in a 2-1 vote, with Judges Kevin Ross and Jon Schmidt forming the majority and Judge Diane Bratvold dissenting.

Plancarte petitioned the Supreme Court to reconsider and dismiss her conviction, which heard oral arguments on Tuesday. It’s not clear when the court will rule on the matter.

In his argument, Lozeau contended that Plancarte did not commit a “lewd” act by revealing only her breasts in public, and said his client did not do anything other than walk across the parking lot with her breasts exposed. He suggested that, as a fix, the state should consider using “genitalia” instead of “private parts” to describe body parts that are illegal to expose in public.

But past court rulings have labeled public toplessness by women but not men as indecent exposure, said Jim Haase, the senior assistant county attorney for Olmsted County. The state has a section of law protecting women who are breastfeeding from indecent exposure charges, Haase noted, which he said shows that female breasts are considered private parts under state law.

Haase pushed back against the notion that Plancarte faced discrimination.

“Why do we prohibit men from walking around with their penis exposed?” he said. “You could make the same argument that men are being discriminated against here because only men have a penis, but yet the statute clearly will prohibit them from doing that.”

A point of dispute between the attorneys was Haase’s claim that Plancarte committed an indecent act. Haase said Plancarte lifted up her shirt, but Lozeau contended there is no evidence Plancarte made a flashing gesture.

A couple of the judges questioned Haase about gender equality with respect to exposed body parts, and how it relates to protections for equality in other areas, such as education or work.

“Why is this social norm more worthy of protection than other pernicious discriminatory social norms, social norms that say that women shouldn’t be in certain professions, for example?” asked Justice Karl Procaccini.

Haase responded that “there has never been a recognized right to be naked in public.”