Judge Allows Expert’s Video Testimony In Topless Case

OCEAN CITY — With a hearing on the preliminary injunction in the Ocean City female toplessness case looming next month, a federal judge this week allowed the plaintiff’s expert witness to testify via live video feed rather than in person.

In the next step in what has become a lengthy process, a hearing on a requested preliminary injunction that would temporarily allow women to go topless in Ocean City in the same areas where men can, including the beach, for example, is set for next Friday in U.S. District Court. The plaintiffs in the case are challenging an ordinance passed by the Mayor and Council in 2017 preventing female toplessness in certain areas of Ocean City.

The town’s contention remains that female toplessness does not mesh with the town’s family resort image and its approval does not meet the public sensibilities on the subject. In the meantime, the plaintiffs have enlisted an expert witness who has already submitted a report outlining how the public’s perception on the issue has changed over the years and the ordinance passed by the Mayor and Council in June 2017 is archaic and no longer reflects the public’s sensibilities.

The expert witness enlisted by the plaintiffs’ attorney is Dr. Debra Herbenick, professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington. Herbenick has already filed an extensive brief on her interpretation of the public’s sensibilities in the case and has been expected all along to testify during the hearing on the preliminary injunction next week.

However, the plaintiffs’ attorney, Devon Jacob, this week filed a motion seeking to allow Herbenick to testify next week via live video feed from Indiana. A federal judge this week approved the motion, setting the table for what should be an interesting hearing on the issue that has polarized many.

“Due to the uniqueness of the issue, there are few experts who are qualified to opine on the issue of whether public sensibilities are accurately reflected or not in the Ocean City ordinance,” the motion reads. “As such, the plaintiffs were unable to locate a qualified and available expert in Maryland.”

Jacob’s motion approved this week cites the expense of travel for Herbenick to appear at next Friday’s hearing as a reason for seeking the live video feed testimony. Herbenick’s findings in the case are already largely on the record and her actual testimony is expected to take less than an hour, according to the motion filed and approved this week.

“As a result of the expert disclosures, the substance of Dr. Herbenick’s testimony regarding the sole issue before the court is already largely known,” the motion reads. “The costs including travel, lodging and food, however, for Dr. Herbenick to travel to and from Maryland to attend the hearing in person would be significant.”

Last January, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 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, and ostensibly any other women who chose to do so, to go topless in certain areas of the resort while the larger case runs its course.

Herbenick’s initial report attempts to undermine Ocean City’s assertion allowing females to go topless in the same areas where men are allowed to go shirtless could be determined as offensive in the family-oriented beach resort. From the beginning, the town has asserted the topless issue offends the public’s sensibilities.

“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 report asserts 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.”

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.