'We just looked at them as ordinary people like we were': the legal gaze and women's bodies.

• Author: Murray, Yxta Maya

Abstract

This Article analyzes the struggles of two female musicians who became caught up in the criminal justice system because they revealed their bodies. Using archival research and personal interviews, I tell the story of punk rocker Wendy O. Williams' 1981-1984 obscenity and police brutality court battles. I also relay the life of Lorien Bourne, a disabled and lesbian rock-n-roller charged with disorderly conduct in Bowling Green, Ohio, in 2006. I examine how legal actors, including courts and jurors, viewed Williams and Bourne using classist, ableist, sexist, and homophobic optics. In so doing, I extend my previous work on legal "gazes," or what I have called the legal practice of "peering." I end the Article by looking to the women's art and lives as correctives to oppressive manners of legal seeing.

PRELUDE: TWO TALES OF FEMALE NUDITY AND THE COURTS

"The prosecutors are the guys doing this for money. These guys are the real whores," (1) Mohawked and leather-clad (2) Plasmatics frontwoman Wendy O. Williams shouted to jurors in the Cleveland Municipal Court (3) in April 1981. They had just rendered a not-guilty verdict on an obscenity charge Williams faced after a sexually explicit January 20 show at the city's Agora club. (4) During the performance, Williams had probably sung her politically uproarious songs while chainsawing a guitar and sledgehammering a television (5)--energetic outrages that proved all the more remarkable since only two nights before she had been beaten and arrested for obscenity by police after a Milwaukee concert. (6) Yet the Cleveland authorities (7) seemed less interested in Williams' Dionysian treatment of property or her out-of-state scandals than in her wearing little over her breasts but shaving cream and fondling her microphone (8) at the Agora.

During the trial, Cleveland prosecutor Patrick Roche showed the jury a film of the Plasmatics' show, (9) which revealed Williams' half-nude dancing as well as the cuts and bruises she'd weathered during the January 18 Milwaukee arrest. This was provocative stuff, but the five-man, three-woman jury (10) did not respond to these visuals with disdain. They acquitted her after only three hours. (11)

Williams' and the Plasmatics' luck with the courts held throughout 1981. (12) Several months after the Cleveland acquittal, Plasmatics manager Rod Swenson appeared in Milwaukee to face the charges of obstructing justice he had earned when trying to save Williams from the police's January 18 beatings. (13) The defense put on a hugely enlarged photograph of Williams being dogpiled by local police as evidence of Swenson's justification for assaulting the officers who attacked her. (14) Once again, the jury acquitted, and one interviewed juror said that they did so because they saw the Plasmatics as "ordinary people" just like they were. (15)

Three years later, however, Williams' life and legal fate saw a different turn. Now a struggling rock star with an arrest for battery on her record, (16) she traveled with her band back to Milwaukee to sue its police department on a civil rights claim based on her January 18, 1981 arrest. (17) During this trial, the Milwaukee jury was offered two images that hailed from those difficult three days: City Attorney Scott Ritter, who defended the police officers, made sure that the jurors saw a blown-up still photograph of Williams covered in shaving cream, an image that resembled the video (sans bruises) that the Cleveland jurors had studied when deciding that she had not committed obscenity. (18) The plaintiffs' attorney, in turn, submitted the photograph of Williams being attacked by the police officers, which had persuaded the 1981 Milwaukee jury that Rod Swenson had not obstructed justice when he had come to Williams' aid. (19) Yet while those images had helped convince the 1981 Cleveland and Milwaukee jurors of Williams' Cleveland innocence and Milwaukee peril, they now helped induce the jury to find that the Milwaukee officers had not sexually assaulted her, not used excessive force, and not been guilty of violating her civil rights. (20)

On September 16, 2006, musician, (21) journalist, (22) and Bowling Green University Student (23) Lorien Bourne stripped to the waist in City Park, in Bowling Green, Ohio. (24) She did so as a protest of park regulations (25) that permitted men to bare their chests but forbade women from doing the same. Her civil disobedience plan included head-turning fliers, (26) a fundraising picnic potluck for a legal defense fund known as the "Titty Committee," (27) and the topless action that would occur in the midst of the alfresco lunch. At City Park, Bourne and several friends disrobed, taking care also to videotape the proceedings. (28) Local police received a complaint and responding officer Matthew Kielman arrived at the scene. He issued Bourne and her female friends citations for disorderly conduct, which in Bowling Green requires that the defendant "recklessly cause inconvenience, annoyance, or alarm to another" by (among other things) "creating a condition that is physically offensive to persons." (29)

Bourne retained the representation of Angelita Cruz Bridges, of the Bowling Green State University's Student Legal Services. (30) On November 17, oral arguments on a motion to dismiss were held. On December 5, 2006, the Bowling Green Municipal Court denied the motion to dismiss on Equal Protection and First Amendment grounds, finding that breasts were "differen[t]" "erogenous zone[s]," (31) and the disrobing qualified as unprotected conduct. (32) It also held that First Amendment rights must be balanced "with the right of others to live in an orderly and tranquil society" (33) and chided Bourne for "perversely disregarding] ... that a person in the public park near her would be annoyed by her bare breasts." (34)

In deciding that Bourne's constitutional rights had not been infringed by her arrest for disorderly conduct, the court was aided by defense counsel's submission of the fliers (35) as well as the videotape. (36) This tape would have revealed Bourne's visible symptoms of Turner syndrome, which causes short stature and a webbed neck, along with heart problems, early mortality, and, sometimes, psychological difficulties. (37) In other words, the videotape would have shown that Bourne experienced physical disability. Bourne was also a lesbian, and while I have found no evidence that she specifically highlighted her sexual identity during her picnic, her decision to eat lunch with other topless women and men may have triggered an impression of sexual difference. The court, however, did not refer to its reactions to seeing Bourne without a shirt on at the park, nor did it breathe a word about Bourne's disability when it denied the motion to dismiss.

Bourne did not see herself and her body as "physically offensive." (38) She appealed to the Ohio Appeals Court, and later to the Ohio Supreme Court, but lost. The Ohio Appeals Court made short work of her claims. The court adumbrated the female breast, like the Municipal Court had, as a forbidden "erogenous zone," and Bourne's behavior as unseemly, and unprotected, conduct: "Because of the anatomical and societal differences, the government has an interest in preservation of the public decorum, decency, and morals." (39) The Ohio Appeals court felt it unnecessary to bulk up its analysis with citations to seminal Equal Protection cases addressing women's rights, such as United States v. Virginia, (40) which requires that gender classifications exist for "exceedingly persuasive" reasons, (41) or Mississippi University for Women v. Hogan, (42) which forbids justifying gender discrimination on "fixed notions" of gender roles. (43) The Bourne court concluded succinctly that "appellant was not discriminated against based solely upon her gender." (44) After this defeat, Jeff Gamso, then head of the Ohio office of the ACLU, took up Bourne's case with the Ohio Supreme Court, (45) as did Andrew D. Bowers, counsel for the Naturist Action Committee ("NAC"), a political group that supports the legalization of public nudity. (46) While the ACLU is a formidable legal institution, (47) NAC, NAC's legal representatives, and NAC's mission convey explicit messages of the value of public displays of nudity. (48) This unlikely pairing of advocates did not win the day for Bourne. (49)

Neither the Ohio Appeals Court nor its Supreme Court mentioned, and perhaps never knew, that Bourne was disabled and a lesbian, and that the Municipal Court must have seen documentary footage of Bourne's physical condition and personal affiliations in the videotape. Nor did the Supreme Court mention anything about NAC's presence in the litigation, and how it influenced its perception of Bourne's case. It just denied certiorari over two dissents, and without any written opinions. (50)

INTRODUCTION

Why did Wendy O. Williams find vindication in Cleveland and Milwaukee juries in 1981, but then lose her well-founded Milwaukee police brutality case three years later? And why did Lorien Bourne get such short shrift during her entire battle with the courts? Both were raucous musicians, and both also protested against sexism and hypocrisy. (51) They each used their undressed bodies as a way both to gain attention and to fight against an unequal society. (52) Yet a study of their lives and their legal cases reveal important differences that telegraph the forces women, LGBTQ people, disabled people, and people who are not members of an elite class must harness to be taken seriously in the courts.

Specifically, the cases of Williams and Bourne reveal the power of "peering," a visual Practice (53) that drives oppression and "othering" (54) in law. Legal power attaches in the realm of the visual: a legal actor--a judge, a jury member, a politician, and sometimes influential members of the press (55)--may design a person's fate by seeing (that is, "peering" at) them as...