Thanks for bringing these issues up Barbara bec. if others have drawn
the conclusions you draw, it is important that I be more clear.  I'll
address the main points one at a time with some snipping for space.

<snip>

> While it may not be technically correct to say that breastfeeding in public
> is a right unless there is a law specifically outlawing it, I feel that
> perhaps your response might swing too far the other way.  You say,
>
> "The issue is whether a state, or more accurately in any given situation an
> individual police officer, makes
> the judgment that public breastfeeding is 'indecent exposure.'"
>
> I think it is easy to conclude from this statement that you are therefore
> saying that breastfeeding in public *is* in fact illegal.  I think this
> conclusion, if drawn, is incorrect.  Simply because a jurisdiction decides
> to interpret a statute in a certain way and/or its police officers decide to
> act on such an interpretation does not make an activity illegal.

Absolutely.  If anyone drew the conclusion that I was saying that an
officer's judgment makes an act illegal, I am sorry.  An officer's
judgment will cause him to act in some way that may be unpleasant to the
nursing mother.  Laws and courts determine whether acts are illegal.

>
> The police make mistakes all the time, sometimes egregiously violating the
> law
> themselves.  Because they make an arrest or "counsel" someone, does not
> signify that whatever the person was doing is necessarily illegal.  What
> such an arrest or counselling signifies is that they *think* (or sometimes,
> are acting under the pretence of thinking) that some activity is illegal.
> Their judgement will be reviewed by prosecutorial staff and ultimately the
> courts in deciding whether it was correct.  It is only at that stage, after
> a judgement or judgements, that we can say that something is illegal or not,
> and even then, we must always consider the context of each judgement and how
> it applies, if at all, to the case at hand.

Yes.  I agree.  However, this in not an experience a breastfeeding
mother wants.

>
> Part of the problem is that we are hampered by simplistic language.
> Behaviour in the "grey" areas - not protected, not prohibited - should
> probably not be described as either being a "right" or as being "illegal",
> strictly speaking.
>
> As lawyers we are fond of saying that we know what "the issue" is.  We
> usually do, in a legal way, know what the issue is.  But "the issue" for our
> clients and for the public at large is probably broader and more
> complicated.  I think that by focusing on the authority of the police and
> justice departments to interpret statutes, which de facto they do have,
> whether or not they are correct in their interpretations, we lose sight of
> several things.
>
> One of those things is, for women who need to breastfeed in public, what are
> her chances of getting arrested or even counselled for indecent exposure?
> Is it realistic for her to fear getting arrested while breastfeeding in
> public?  The one incident in Connecticut, where a woman breastfeeding her
> baby in a car in a mall parking lot was arrested but charges were later
> dropped, seems to be a definite anomaly.  There have been no further such
> incidents as far as we know.  I think we can all say - even if we are
> lawyers, and therefore prone to urging caution - that getting arrested for
> indecent exposure or public nudity for breastfeeding in public, while
> theoretically possible, is not a realistic fear.

I think you may be right that arrest is not a realistic fear if women
continue to refrain from public breastfeeding or continue to comply with
requests to stop once they are breastfeeding in public.  Since few women
stand up for their "right" to breastfeed publicly, we can not say how
many arrests there would be.  I can not speak for other jurisdictions
but here in Pennsylvania I strongly believe that there would be
arrests.  I do not think it is accurate to say that a theoretically
possible thing is not realistically feared.

Most importantly, I am absolutely *not* urging caution.  I urge
education and activism.  In my state, it would make things much easier
if someone were charged with indecent exposure for public
breastfeeding.  I believe that there would be no conviction.  Then we
could hand out copies of the judge's finding that public breastfeeding
was not indecent exposure and armed with this paper the rate of
harassment would go way down -   maybe even enough to make protective
legislation unnecessary.

>
> This is not to say that shop owners, security guards, lifeguards, etc. might
> not harass a woman breastfeeding in public, but this is a different matter,
> of course, and has nothing to do with the legality or illegality of the
> activity.

Legislation would reduce and possible eliminate harassment.  If an act
is irrefutably legal, all of these people who harass because they think
the conduct is improper in some way would know that they were wrong.
Not all those who harass do so with malice but most do so out of
ignorance, I think.

>
> You also say,
>
> "My fear continues to be that in practice we create women who believe that
> by saying "I have the right to breastfeed everywhere I have the right to be"
> they are immune from arrest and/or prosecution under indecent exposure
> statutes."
>
> With respect, I don't think there any many women who think they are immune
> from arrest or prosecution.  We've all seen the cop shows, and I think it is
> the rare person who doesn't appreciate the awesome power of the state to
> arrest and incarcerate individuals when it chooses to.  I think almost
> everyone knows that you can be arrested for creating a disturbance in
> public, for resisting arrest, for trespassing on private property, etc.

I absolutely disagree.  It is the breastfeeding mother, and not the cop,
who sees the enormous difference between revealing her breast to feed an
infant and selling drugs.  I think most nursing mothers think they are
immune from arrest or prosecution.

>
> If a "breastfeeding in public incident" turns ugly, then yes, the police
> might be called in and the possibility that a woman will be arrested "while
> breastfeeding" is increased.  But even if she is arrested, it would not mean
> that she was arrested *for breastfeeding in public/indecent exposure*.  In
> this case, it would be the subsequent behaviour that would be the basis of
> the arrest.  Of course this would be terrible, and terribly undeserved, but
> it would not be the same as an arrest for indecent exposure for
> breastfeeding in public.  I think that only a general caution regarding
> breaking other laws is needed here, not a caution regarding breastfeeding in
> public specifically.


Again, I strongly disagree.  While I admit that I personally might tell
a police officer to f*ck off if he asked me to stop breastfeeding, most
nursing mothers would do no more than refuse to stop breastfeeding.


<snip>

> Again, Jake, I regard this as an amicable exchange of ideas.  I don't see us
> directly disagreeing so much as putting the emphasis on different points. I
> look forward
> to your further comments.

I think I covered your main points.  No worries, I don't feel flamed.
This is important stuff and clarification helps us all.

>
> Barb Strange
> Non-practicing lawyer and wife of professor of law at University of Alberta
> (not flaunting my credentials or connections here, just thought in this
> context they were
> relevant and important to mention)

LOL.  Maybe our difference in perspective is that I am definitely less
likely to expose bare flesh in the cold of Alberta :)

Jake
--
Jake Marcus: freelance writer and editor; lawyer; homeschooling
work-at-home mom to Luca (7/94), Nicholas (5/97), & Aidan (3/00).
mailto:[log in to unmask]
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