Sunday, July 03, 2005

Court Affirms Nipple Piercing Conviction

Court Affirms Nipple Piercing Conviction
The state Court of Appeals has affirmed the conviction of an Albuquerque shop owner who offered free nipple piercing if customers underwent the procedure in the store’s window. In 2002, Renee Sachs was convicted of violating Albuquerque’s ordinance banning nudity in a public place. She received a 90-day deferred sentence.
In a 3-0 ruling Tuesday, the Appeals Court also upheld the constitutionality of the city’s public nudity ban.
Sachs’ attorney, Jeffrey Dempsey of Albuquerque, said his client would continue with her legal challenge by asking the court to rehear the case or petition the state Supreme Court to review the ruling.
Sachs ran an advertisement two years ago promoting the free nipple piercing. The first customer to undergo the procedure in the shop’s window was a man and the second was a woman.
When police arrived at the tattoo and body piercing shop, a woman was sitting in the window exposing her breasts as she had her nipples pierced. Several people on the sidewalk were watching.
Sachs was convicted of violating the city’s ordinance that bans nudity in public and prohibits store owners from allowing people to be nude in a public place of business.
The Appeals Court ruled that the ordinance did not violate the Equal Rights Amendment of the New Mexico Constitution or the state’s Human Rights Act, which prohibits gender-based discrimination.
In her appeal, Sachs contended that the ordinance was unconstitutional because it discriminated against women by prohibiting the public exposure of a female breast but not a male breast. She also argued that the ordinance forced her to offer body piercing services in a way that discriminated on the basis of sex.
The court disagreed.
“The city ordinance does not prohibit public nudity of women while allowing public nudity by men,” the court said in an opinion written by Judge Michael Vigil. “It recognizes that females and males have different anatomies, so the objective is accomplished in a nondiscriminatory manner.”
The court also concluded that nipple piercing is not a form of expression protected by the First Amendment.
“The Court of Appeals found that the city nudity ordinance did not operate to the disadvantage of women. We disagree with that,” said Dempsey. “For example, if it had said that Caucasian people can take their shirts off and all others cannot, it seems hard for me to see how that would not operate to the disadvantage of people of color. We think this is the same thing.”