(Author’s note: This post has been amended since its initial publication.)
My kids spend lots of time during the summer at our local YMCA, where this day of the week is known as Wacky Wednesday. On Humpday, many of us at the School of Government think of a retired colleague who greeted everyone in the building with a “Happy Wonderful Wednesday!” Whether you deem today’s blog post wacky or wonderful–or just plain weird—it addresses a question that continues to cross the minds of many in the state and which was posed to me a few weeks ago. Fortunately, there is a clear answer. (Spoiler alert: If you’ve visited the beach lately, you likely know what it is.)
The issue. North Carolina’s indecent exposure statute generally prohibits a person from willfully exposing his or her private parts in any public place and in the presence of any other person. There is, of course, an exception that allows same sex exposure in public changing and locker rooms. Given that beaches are public places, thongs cannot be worn if they result in the exposure of a person’s private parts. There’s really not a more delicate way to state the issue than this: Are buttocks private parts?
The analysis. Somewhat surprisingly, the state supreme court addressed this very issue some years ago in the aptly captioned State v. Fly, 348 N.C. 556 (1998). Fly was charged with indecent exposure after a Charlotte woman climbing the steps to her condominium encountered him bent over at the waist with his pants pulled down to his ankles. Fly was naked from his head to his feet. The woman saw what she described as Fly’s “buttocks, the crack of his buttocks.” Fly moved to dismiss the charges on the basis that the evidence was insufficient to show he had exposed his private parts since buttocks were not private parts within the meaning of the indecent exposure statute. The trial court denied his motion, and the jury found him guilty. A majority of the court of appeals reversed the trial court on the basis that the term private parts included only genital organs and not buttocks. A dissenting judge disagreed, writing that he considered buttocks to be private parts.
The State appealed to the state supreme court, arguing that because defendant was naked from head to foot, his private parts were exposed. The state supreme court agreed, explaining that external organs of both sex and excretion are included in the term private parts and that the jury could reasonably find from the evidence that the defendant exposed either his anus, his genitals, or both. Thus, the supreme court reversed the court of appeals and remanded the case for reinstatement of the judgment.
Though the supreme court deemed it “unnecessary . . . to determine what, if any, other parts of the female or male anatomy may be included within the phrase ‘private parts,’” it thought “given the posture of the case” that it would be wise to address the issue of buttocks. The high court then noted its agreement with the court of appeals’ majority that buttocks are not private parts within the meaning of the statute. The court explained:
To hold that buttocks are private parts would make criminals of all North Carolinians who appear in public wearing “thong” or “g-string” bikinis or other such skimpy attire during our torrid summer months. Our beaches, lakes, and resort areas are often teeming with such scantily clad vacationers. We simply do not believe that our legislature sought to discourage a practice so commonly engaged in by so many of our people when it enacted N.C.G.S. § 14–190.9.
The answer. Wearing a thong on the beach or in any other public place in North Carolina does not violate the state statute barring indecent exposure.
I’ve heard people say that some towns impose stricter rules at their local beaches. And a few beach towns do have ordinances that prohibit a person from appearing on any public beach in a state of undress that exposes the buttocks with less than a fully opaque covering.
Can towns ban thongs? The state supreme court in State v. Tenore, 280 N.C. 238 (1972), construed G.S. 14-190.9 as it was then written to allow cities and counties to enact ordinances that prohibited lewd conduct not banned by the state statute. The county ordinance challenged in Tenore was ruled preempted, however, since it banned conduct identical to that covered by the state statute. Thus, Tenore indicates that local governments could require people in public places to cover their buttocks.
But since Tenore, G.S. 14-190.9 has been amended to, among other things, specifically authorize local regulation in a very narrow area–that of the location and operation of sexually oriented businesses. G.S. 14-190.9(c). And current G.S. 14-190.9 is quite comprehensive in its description of impermissible and permissible exposure. Subsection (b), for example, states that a woman may breast feed in any public or private location where she is otherwise authorized to be, regardless of whether her nipple is uncovered. Tenore‘s conclusion that local governments can require more clothing in public places than the state statute seems inconsistent with both the enactment of subsection (c) and the breadth of current G.S. 14-109.9 as well as with Fly. Thus, I strongly suspect that stricter local regulation of the exposure of private parts is prohibited. See G.S. 160A-174(b)(5).
Whatever you’re wearing, I hope you have a wonderful Wednesday.