By PHILLIP BANTZ
The Keene Sentinel: September 08, 2009
The armed teenager who was arrested while topless in downtown Keene did not break the law, according to police prosecutors.
Cassidy Nicosia, 18, of Manchester no longer faces a misdemeanor charge of indecent exposure and lewdness.
Nicosia was arrested Aug. 23 after police received complaint calls about a topless teenager standing near the Main-Marlboro-Winchester streets roundabout with a handgun holstered on her hip.
State law does not require residents to have permits to openly carry guns, and she was not charged with any firearm-related crimes.
Last week, police prosecutors D. Chris McLaughlin and Eliezer Rivera decided to drop the charge of indecent exposure and lewdness against Nicosia. The charge was dropped because walking down the street topless does not qualify as a crime under state law, Keene police Lt. Jay U. Duguay said.
The law states that a person commits indecent exposure and lewdness if he or she fornicates, exposes genitals or performs any other “act of gross lewdness … likely to cause affront or alarm” in public.
“She wasn’t fornicating or exposing genitals — breasts aren’t genitals,” Duguay said. “No one who complained about it said that it was gross lewdness.”
While towns and cities may enact ordinances that prohibit women from going topless in public, Keene has no such ordinance, Duguay said.
“The officer (who arrested Nicosia) did what he thought was right at the time,” he said, “but sometimes you take a second look at these things and realize the law is not really worded the way you thought it was.”
Two other factors played a role in the police prosecutors’ decision to drop the charge against Nicosia, according to Duguay.
They wanted to keep the N.H. Supreme Court from having a chance to weigh in on the law, which could have happened if Nicosia was convicted and appealed, Duguay said. If asked to examine the state law dealing with indecent exposure and lewdness, the court might find that the language in the statute is too broad and then drop the entire statute, he said.
Also, Nicosia went topless to make a statement about equality, which could be viewed as a form of expression or free speech that is protected under the First Amendment, Duguay said.
“I chose to do it because … one of the most important issues to me is equality,” Nicosia said while being videotaped before her arrest. “Men can walk down the street … and, you know, not get harassed at all but yet somehow this is dirty.”
Nicosia is a member of the Free State Project, an effort to convince 20,000 people to move to the Life Free or Die state and participate in various forms of activism and run for local and state office.
Attempts to reach Nicosia before press time were unsuccessful.
Ian “Freeman” Bernard, a talk radio host and outspoken member of the project, said other women were planning to go topless outside Keene District Court during Nicosia’s arraignment, which was scheduled for Wednesday. He wasn’t sure if the topless demonstration would still occur.
While Nicosia no longer faces a criminal charge, the dismissal prevents her from challenging the law and paving the way for other women to go topless in public without risking arrest, Bernard said.
“By dropping the charge they’ve really headed off any way to challenge what they’ve done and set a precedent,” he said. “Hopefully, if this happens again, if someone like Cassidy decides she’s hot and wants to act like her male counterparts, they can be left alone.”