Q: If female toplessness is removed from the city’s public nudity ordinance, and I took a photo outside that had a topless minor in it, would that count as possessing child pornography?
A: It’s a little dicey at the moment, but essentially, yes, it could. And you certainly couldn’t post it.
Riley County Attorney Barry Wilkerson, whose office prosecutes cases such as sex crimes, says the office does not yet have a concrete approach on how it would handle this issue if Manhattan’s city ordinance regarding public nudity were to remove the wording about female breasts from its definitions. Wilkerson said having a photo of a topless girl could constitute child pornography, but that he would need to discuss the details further with the city attorney’s office.
“I don’t know where this is going to go yet,” Wilkerson said.
City Attorney Katie Jackson echoed this statement though municipal courts do not have jurisdiction over these types of offenses, including child pornography.
“A city’s public nudity ordinance, or lack of, has no bearing on those prosecutions,” Jackson said. “That conduct remains illegal and can be prosecuted, regardless of what a city ordinance says.”
At a Manhattan City Commission meeting on Oct. 15, commissioners gave the initial OK to remove a definition that singled out female breasts from its public nudity ordinance. The commission will have a final vote at its Nov. 5 meeting at City Hall and if approved, officials said it would take effect Nov. 10. The final vote is on the consent agenda, which the commission generally passes without discussion.
But even if female toplessness is removed from the definition, that doesn’t necessarily mean the city is allowing it in all situations. Public exposure of female breasts can still violate another law and be prosecuted, depending on the situation, and property owners and businesses would still retain the right to require all patrons to wear shirts.
Kansas does not have a state law that prohibits general public nudity but it can criminalize the act if it violates another law such as lewd and lascivious behavior. Cities can decide if they want stricter laws within their limits, but most don’t regarding public nudity, and they are still obviously bound by state and federal laws.
In Manhattan, you can’t display male or female buttocks or genitals, as well as female breasts at the moment. There are exceptions to the city’s current ordinance, including breastfeeding, places set aside for nudity like restrooms and dressing rooms, and nudity used for artistic, theatrical or educational purposes.
“The city’s public nudity ordinance is a criminal prohibition ordinance,” Jackson said. “It is not permissive. It states that certain conduct violates the city ordinance, and that conduct can be prosecuted in the Manhattan Municipal Court. Criminal prohibition ordinances do not grant someone permission to do something that is not prohibited in the ordinance. If the city ordinance is amended as proposed, it is not allowing a female to be topless in Manhattan, nor is it permitting any state or federal crimes involving minors.”
Jackson recommended the city amend the ordinance for the time being to avoid potential lawsuits after a civil lawsuit in Fort Collins, Colorado. The state is covered by the 10th Circuit Court of Appeals. Fort Collins settled the case, but not before the court said it likely would find the female toplessness ordinance unconstitutional.
Jackson said that case doesn’t require Manhattan to change its law but the ordinance as is could potentially leave the city open to litigation.
According to city officials, Manhattan has prosecuted 51 cases of public nudity since 2003. Of those, 37 defendants were males exposing their genitalia. Of the 14 female defendants, six were cited for toplessness, which occurred between 2004 and 2010.
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