Charge dropped against teenager Free Stater went topless in city
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.
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
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.”
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