Expert Witness Maintains Topless Women Would Not Offend Majority

Expert Witness Maintains Topless Women Would Not Offend Majority
A woman is pictured in a bathing suit in 1963. The photo from Ocean City along with several others were introduced as evidence in the ongoing civil case over the town’s topless ban. Submitted Image

OCEAN CITY — The plaintiffs’ expert witness on the female toplessness issue in Ocean City opined in written testimony the town’s ordinance passed in 2017 does not reflect “public sensibilities” on the subject.

Last January, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council last year prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. In June, the plaintiffs in the case, including local resident Chelsea Eline and four others, filed a motion for a preliminary injunction that would allow them to go topless in certain areas of the resort while the larger case runs its course.

A hearing originally set for September was postponed at the last minute to allow the attorney for the plaintiffs in the case to acquire the services of an expert witness to weigh in on Ocean City’s assertion allowing female toplessness in certain public areas including the beach “offends the sensibilities of the general public.”

The plaintiffs’ attorney, Devon Jacob, enlisted Dr. Debra Herbenick, professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington, to research the “public sensibilities” issue in regard to Ocean City’s ordinance that prohibits female toplessness in certain public areas and make an official report to be entered as evidence in the ongoing civil suit. Herbenick, also a noted sex educator and sex advice columnist, formally filed a pair of reports on the issue last Friday.

The reports attempt to undermine Ocean City’s assertion allowing females to go topless in the same areas where men can could be determined as offensive in the family-oriented beach resort.

“They seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and likely will not tolerate nudity in such a densely-populated and wholesome tourist setting as Ocean City and its beaches,” the town’s motion in opposition to the preliminary injunction filed this summer reads.

However, Herbenick’s reports filed last week assert the town’s ordinance is short-sighted in terms of the public’s sensibilities regarding female toplessness.

“The ordinance fails to acknowledge important similarities between the female and male breasts and the ordinance overstates differences between female and male breasts,” the report reads. “The notion that females baring their breasts in public ‘is still seen by society as unpalatable’ is not supported by peer-reviewed scientific research. Peer-reviewed scientific research supports the conclusion that by not treating females and males equally in regard to their ability to appear bare-chested may contribute to harmful secondary effects such as promoting a culture that over-sexualizes girls and women, thus harming and not protecting the public.”

Herbenick’s report suggests public opinion on female toplessness has evolved over the years and Ocean City’s ordinance does not reflect the changes in attitude.

“In my professional opinion, females baring their breasts in public spaces where one would also allow males to bare their chests is not generally seen as ‘unpalatable’ in contemporary America,” the report reads. “Public sensibilities have changed considerably in recent decades with greater acceptance of viewing female breasts as well as a greater insistence on females and males being treated equally. In closing, having reviewed the relevant research and having considered the issues at hand in light of my professional expertise and knowledge of the topics, it is my opinion that Americans’ public sensibilities have evolved to be accepting of female bare-chestedness in the same places where males may be bare-chested fr purposes other than just breastfeeding.”

As part of her extensive research, Herbenick also gathered and reviewed photographs of men and women on the beach over the decades to illustrate how the times have changed.

“In an effort to understand the evolution of public sensibilities specific to Ocean City, Maryland, I systematically reviewed more than 1,000 historical and contemporary photographs from Ocean City,” the secondary report reads. “I focused my review on photographs clearly identified as being from Ocean City, Maryland and gave preference to photographs that included a date.”

The review of those photographs, many of which were included in last week’s filings, reveal the evolution of beach coverings for females over the decades, according to Herbenick’s report.

“My review indicates that public sensibilities have evolved rapidly over the decades regarding what males and females wear on or near the Ocean City beaches,” the secondary report reads. “From the 1930s to the 1960s and 1970s, there were considerable changes that resulted in men going from covering their chests to baring their chests and from women wearing dresses and even stockings to wearing bikinis. Recent decades have seen women in Ocean City wearing thong or g-string bikini bottoms and even pasties that cover just the nipples during ‘best body’ competitions.”

Herbenick’s reports are entered as evidence and will be considered when the ruling on the preliminary injunction and ultimately the larger case will be heard. Ostensibly, Ocean City will collect its own evidence and likely produce witnesses to illustrate its assertion allowing female toplessness offends public sensibilities. A hearing on the preliminary injunction is set for Dec. 7.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.