WOMEN'S BODY IMAGE AND THE LAW REENA N. GLAZER Resistance can take the form of momentous acts of organized, planned, and disciplined protests, or it may consist of small, everyday actions of seeming insignificance that can nevertheless validate the actor's sense of dignity and worth-such as refusing on the basis of inferiority to give up 'a seat on a bus or covering 1 one's self in shame. INTRODUCrION On June 21, 1986, nine women exposed their breasts in a secluded area of a public park in Rochester, New York.2 The women appeared topless to express publicly their outrage against New York Penal Law section 245.01, which imposes criminal sanc- tions on women, but not men, who expose their bare chests in public Seven of the women were arrested and charged with vio- lating section 245.01.' The ensuing litigation spanned six years and culminated in a decision by the Court of Appeals of the State of New York, the state's highest court.5 1. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE LJ. 365, 396. 2. People v. Craft, 509 N.Y.S.2d 1005, 1007 (Rochester City Ct. 1986), rev'd, 564 N.Y.S.2d 695 (Monroe County Ct. 1991), rev'd sub nom. People v. Santorelli, 600 N.E.2d 232 (N.Y. 1992). 3. Id. Under New York law, [a] person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private parts or intimate parts of a female per- son shall include that portion of the breast which is below the top of the are- ola. This section shall not apply to the breastfeeding of infants or to any per- son entertaining or performing in a play, exhibition, show or entertainment. Exposure of a person is a violation. Nothing in this section shall prevent the adoption by a city, town or village of a local law prohibiting exposure of a person as herein defined in a public place, at any time, whether or not such person is entertaining or per- forming in a play, exhibition, show or entertainment. N.Y. PENAL LAW § 245.01 (McKinney 1989). 4. Craft, 509 N.Y.S.2d at 1007. 5. People v. Santorelli, 600 N.E.2d 232 (N.Y. 1992). 114 DUKE LAW JOURNAL [Vol. 43:113 The women complained that the statute violated equal protec- tion principles because it treated men and women differently for no legitimate reason.6 The court reversed the women's convictions but not on equal protection grounds. Instead, the court decided that the law prohibiting public exposure of the female breast was not meant to apply to this type of non-lewd behavior. Nonetheless, the court upheld the statute.7 Although this case garnered a great deal of publicity and media attention,. it failed (not surprisingly) to stimulate a massive revolution in topless sunbathing by women on the beaches or in the parks of New York.9 The significance of the decision rests more in its symbolic power and the legal analyses employed. This case is illustrative of the larger phenomenon of the law's impact on women's images of their own bodies. Just as the law can influ- ence people's behavior, if can influence how people feel about themselves. Women have a powerful psychological need to pursue and preserve their beauty and to enhance their attractiveness. 10 One noted psychologist has written that "[o]ur body image is at the very core of our identity."'" Women have been shown to be more sensitive and to attach more significance to body image than men. 2 Not only do different cultures and races have unique and specific ideas about what it means to be "attractive," 3 but these 6. It is well established that any law that discriminates between men and women violates the Equal Protection Clause of the Fourteenth Amendment unless the govern- ment can demonstrate that the gender-based classification is substantially related to achieving an important government interest. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976). 7. Santorelli, 600 N.E.2d at 233-34. 8. For some examples, see Michelle Slatalla, Tops Drop, Gripes Grow, NEWSDAY, July 23, 1992, at 4; Gary Spencer, Law Permits Bathing By Topless Women: Judges Point to Noncommercial Conduct, N.Y. L.J., July 8, 1992, at 1; Michael Winerip, On Sunday: Blazing Trails, Toplessly but Timidly, N.Y. TIMES, Aug. 2, 1992, at A37. For a sampling of editorials written about the case, see Alan M. Dershowitz, Cover Up!, NEWSDAY, July 29, 1992, at 38; Carlin Meyer, Women's Breasts: So What?, N.Y. TIMES, July 29, 1992, at A21; Ellen Willis, Erroneous Zones, NEWSDAY, July 29, 1992, at 38. 9. Winerip, supra note 8, at A37. 10. Adrian Furnham et al., Sex Differences in the Preferences for Specific Female Body Shapes, 22 SEX ROLES 743, 744 (1990). 11. Judith Rodin, Body Mania, 25 PSYCHOL TODAY, Jan.-Feb. 1992, at 56, 60 (1992). 12. Id. This differential is reflected in the fact that 90% of all anorexics are women. See ROBERTA P. SFD, NEVER Too THIN: WHY WOMEN ARE AT WAR WrMI THEIR BODIES 26 (1989). 13. Furnham et al., supra note 10, at 744. 1993] WOMEN'S BODY IMAGE ideals change over time as well. Over the past fifty years, the Western ideal of beauty has dictated a substantially thinner stan- dard for the female body.14 This dramatic transformation in fe- male body image has led to an obsession with body weight and shape.'5 Studies have found that women continually distort their per- ceived body shape and have extremely negative valuations of their own bodies. 6 Such negative body images generate lower self-es- teem and consume extraordinary amounts of time, energy, and money. For example, at any given time, twenty-five percent of women are on diets, and fifty percent are beginning, completing, or cheating on one. 7 These statistics are punctuated by the fact that the diet industry earns $33 billion a year. 8 This Note argues that the law has contributed to the creation of an environment in which women are conditioned to hate their bodies and strive for an unrealistic and unattainable ideal form. Criminalizing the mere exposure of women's breasts while allowing men to expose theirs sends a strong message to both women and men as to how they should feel about women's bodies." It says that women's bodies are to remain covered and hidden in public 14. See JOAN J. BRUMBERG, FASTING GIRLS: THE EMERGENCE OF ANOREXIA NER- VOSA AS A MODERN DISEASE 20 (1988). Previously, the average female model weighed 8% less than the average American woman; today, she weighs 23% less than an average woman. SEID, supra note 12, at 15. 15. See NAOMI WOLF, THE BEAUTY MYTH (1992) (chronicling the phenomenon of society alienating women from their bodies and their sexuality). , 16. This negativity is exemplified in a study of high school girls that found that 53% of them are unhappy with their bodies by age 13, and that by age 18, 78% are unhappy. In addition, a magazine survey of 33,000 women found that while only 25% of women between the ages of 18 and 35 are medically overweight (the same percentage of men who are overweight), 75% of women feel that they are fat. In addition, 45% of under- weight women thought they were fat. See id. at 185. 17. SEID, supra note 12, at 3. 18. Molly O'Neill, Congress Looking into the Diet Business, N.Y. TIMES, March 28, 1990, at C12; Rodin, supra note 11, at 58-59. ("By the turn of the century we will be spending $77 billion to lose weight-just slightly less than the entire gross national prod- uct of Belgium."). 19. Criminal legal sanctions, unlike other penalties in American law, carry strong moral and stigmatic overtones. "The stigma of condemnation is one of the distinctive characteristics, if not the distinctive characteristic, differentiating the criminal law from other kinds of legal sanctions." PETER W. Low ET AL., CRIMINAL LAW: CASES AND MATERIALS 3-4 (2d ed. 1986). The criminalization of women baring their breasts, therefore, indicates that society views women's bodies as immoral and something to hide. There is something potentially criminal about every woman just by virtue of being female. DUKE LAW JOURNAL [Vol. 43:113 at all times.' The very sight of the bare breast is a crime, re- gardless of the woman's intent.21 Exposure statutes are only one example of the law's negative impact on women's body image. This Note explores the broader relevance of People v. Santorelli by discussing. other legal decisions that have been harmful to women's body image. This statutory double standard embodies the inequality be- tween men and women in society. Men are free to expose their chests in virtually any surroundings they choose with no consider- ation of the impact on possible viewers. New York Penal Law section 245.01, however, is written solely to take into account potential viewers.' The focus is on the male response to viewing topless women; there is no focus on the female actor herself. This inverted structure of point of view 3 helps to maintain men's objectification of women. Male power is perpetuated by regarding women as objects that men act on and react to rather than as actors themselves.' When women are regarded as ob- jects, a great deal of importance rests on their appearances be- cause their entire worth is derived from the reaction they can induce from men.