May 17, 2013
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MANHATTAN (CN) – “Topless paparazzo” Holly Van Voast claims in court that New York City police repeatedly arrested and institutionalized her for legally baring her breasts while wearing a Marilyn Monroe wig and Don Juan mustache.
Van Voast aka Harvey Van Toast sued New York City, Police Commissioner Ray Kelly, the Metropolitan Transit Authority and dozens of police officers in Federal Court. The 46-year-old performance artist calls going topless part of her commitment to “personal, artistic and gender freedom,” inspired a “broad artistic community of punk drag” performers such as Little Kimchi, Misty Meaner and Mary Jo Cameltoe, according to the complaint.
Van Voast says the law has been on her side since 1992, when the New York State Court of Appeals dismissed an indecent exposure violation against Rochester woman Ramona Santorelli.
Ignoring the “clear command” of the Santorelli ruling, the NYPD “has stopped, detained, harassed, arrested, summonsed, charged and/or prosecuted plaintiff on dozens of occasions – solely for exercising her right to be to be topless in public in New York City. The NYPD has repeatedly charged and arrested Ms. Van Voast for appearing topless in public although she has committed no crime,” the complaint states.
“On multiple occasions when plaintiff was peacefully going about her business in New York City, the NYPD has wrongfully detained and charged Ms. Van Voast, either with ‘Indecent Exposure’ pursuant to New York Penal Law § 245.01, or with a host of other sham charges. The NYPD has charged Ms. Van Voast on these occasions not because she was doing anything illegal, but for the impermissible and unconstitutional purpose of penalizing and deterring her from being topless in public.”
The NYPD Deputy Commissioner Paul Browne told the Village Voice in June 2011 that toplessness was legal.
“The state’s highest court established long ago that women have the same right as men to appear topless in public,” Browne told the Voice.
Two months later, Van Voast says, police detained and charged her for toplessly waltzing into the Oyster Bar at Grand Central Station without a “permit.” That charge was adjourned in contemplation of dismissal. Another indecent exposure charge for walking topless in the Williamsburg neighborhood of Brooklyn on Oct. 23, 2011 was dismissed entirely.
On March 14, 2012, Van Voast says, she chose the P.S. 6 elementary school in Manhattan’s wealthy Upper East Side neighborhood to send her message.
“Plaintiff chose that location to stand specifically to express her opinion that the sight of women’s breasts is not dangerous to children, and that claims of ‘protecting’ children from toplessness were misplaced,” the complaint states.
She claims that two unidentified officers took her for psychiatric evaluation to New York Presbyterian Hospital, where she was held against her will for about six days.
After she appeared topless at the Bronx Day Parade on May 20, 2012, police sent her for evaluation at Montefiore Hospital, where she was handcuffed to a bed for “an extended period of time,” according to the complaint. Oblivious to irony, NYPD officers sent her to St. Luke’s-Roosevelt Hospital for being topless in front of a Hooters restaurant in Midtown Manhattan, she claims. The complaint recites several more such incidents.
Van Voast claims the NYPD tried to justify its actions by issuing a “FINEST” message on Feb. 3 this year, instructing police to take “enforcement action” against “male or female individuals who are simply appearing in public unclothed above their waist.” Van Voast demands punitive damages and legal fees for constitutional violations and negligent supervision.
She is represented by pugnacious civil rights attorney lawyer Ron Kuby and Katherine Rosenfeld, with the heavy-hitting law firm Emery Celli Brinckerhoff & Abady. A New York City Law Department spokeswoman told Courthouse News that the New York State Court of Appeals decision does allow women to be topless in public, but that the decision included “various qualifiers” prohibiting “lewdness,” among other things.
“We will review the allegations in the complaint, which at this point are just that, allegations,” the spokeswoman said. She said Thursday that the NYPD had not yet been served with the complaint. She added that she could not speak to whether the Santorelli qualifiers applied in this case.
The text of the Santorelli opinion is vague on that. The majority opinion states: “Considering the statute’s provenance, we held in Price that a woman walking along a street wearing a fishnet, see-through pull-over blouse did not transgress the statute and that it ‘should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged.'”
The opinion does not state that New York Penal Law § 245.01 applied to lewdness, but a concurring opinion says the opposite.
“Nor can it be argued that Penal Law § 245.01 was intended to be confined to conduct that is lewd or intentionally annoying,” the concurring opinion states. “First, there is absolutely no support in the legislative history for such a construction. Second, a construction of Penal Law § 245.01 requiring lewdness would be of highly questionable validity, since it would render Penal Law § 245.00 [prohibiting the exposure of ‘intimate parts’ ‘in a lewd manner’] redundant.”
Neither of Van Voast’s attorneys replied to a request for comment.
This article originally appeared on : AlterNet