Minnesota woman prosecuted for exposing breasts in public loses case on appeal

The Minnesota Court of Appeals rejected a bid by a woman who sought to overturn her indecent exposure conviction on the grounds that she has the same right to expose her chest in public as men.

Eloisa Plancarte, 27, of South St. Paul was arrested by Rochester police in July 2021 after they responded to a call about a disturbance in a convenience store parking lot. She was later charged and convicted in Olmsted County District Court with indecent exposure. She was also charged with cocaine possession and given a stay of adjudication, meaning that charge will be dismissed if she abides by the other terms of her sentence.

An indecent exposure charge is warranted when someone “willfully and lewdly exposes the person’s body, or the private parts thereof,” according to state law.

The appeals court decision upholding the lower court’s ruling was split 2-1, with Judges Kevin Ross and Jon Schmidt forming the majority and Judge Diane Bratvold dissenting.

“A woman’s intentional display of her fully exposed breasts in the parking lot of a convenience store during routine business hours constitutes willful and lewd exposure of her private parts under Minnesota Statutes,” read the majority opinion.

During the trial, Plancarte argued that prosecuting a woman for exposed breasts in public violates her constitutional right to equal protection because men are not charged for their exposed breasts. She also argued there was insufficient evidence for the conviction, saying that the state proved she exposed her breasts but not that she did so lewdly, as the law requires.

In her dissent, Bratvold wrote she would have reversed the convictions because it was not proved that Plancarte was lewd in her actions. “The record evidence — which includes no testimony from anyone who saw what Plancarte did — fails to prove that Plancarte’s exposure was lewd or obscene,” Bratvold wrote.

Plancarte’s attorney did not return calls seeking comment on Monday.

David Schultz, a professor of legal studies and political science at Hamline University, said he thinks Plancarte has a case if she continued challenging and took it to the Supreme Court. Schultz said he thinks it’s debatable whether all instances of being topless would be considered lewd, pointing to the existence of unofficial nudist beaches in Minnesota where people are not prosecuted for being naked.

“The court seems to be saying merely having your breast exposed in public is inherently lewd; I’m not sure that’s the case,” said Schultz, later adding he thinks there are “a lot of problems” with that interpretation.

There are past examples in other states where someone successfully challenged an indecent exposure conviction. In a 1992 case, the New York Court of Appeals sided with two women who argued it was wrong to allow nudity above the waist for one sex but not the other, and their convictions were thrown out.

In Minneapolis, the City Attorney’s Office reviews each situation individually to see if it should be prosecuted as indecent exposure, city spokesperson Sarah McKenzie said in an email. That includes determining if someone “willfully and lewdly” exposed their private parts or broke the statute based on the other law requirements.

“We do not take a categorical approach to these cases and review incidents on a case-by-case basis with consideration given to all relevant facts, including location and manner,” McKenzie said.

Schultz said there is an issue with the vagueness over what counts as “private parts” under Minnesota’s laws. The judges wrote in Monday’s filing that “neither the Supreme Court nor this court has directly addressed” whether “private parts” includes a woman’s breasts, but that they are “confident” that the Legislature intended them to count.

Schultz added that he thinks it’s fair to point out that the two judges who denied the appeal and think it was a lewd act are men, while the one who dissented is a woman.

“It does raise questions about sex-based or gender-based discrimination,” he said.