The expression “don’t make a federal case out of it” is a colloquialism for “don’t start a big argument over of something trivial”. I wonder if that expression occurred to anyone involved in the current federal case about Janet Jackson’s right nipple.

The momentary exposure of Ms Jackson’s nipple to television viewers watching the 2004 American Super Bowl resulted in an indecency case that recently went to the federal appeal court in Philadelphia. The issue occupying thousands of hours of lawyer and judge time is whether the exposure should be punished as an act of broadcasting indecency or excused as a “wardrobe malfunction”.

How does English law deal with alleged indecency? Nothing as petty as a fleeting flash of nipple would occupy the British courts in similar circumstances. In the UK, broadcasters must not include anything in their programmes that would offend against “good taste and decency”. But a broadcaster would not be prosecuted for something unplanned that lasted only for a few seconds.

In law, defining what is “indecent” is difficult. Sometimes the law gets around the difficulties by being very specific. For example, the offence known as “indecent exposure” (under the Sexual Offences Act 2003) makes its a crime for a man to expose his genitals. Not only is the crime that precise but - for a conviction - the exposure must be intentional and the culprit must intend that some one will see “and be caused alarm or distress”.

For other wrongs that include indecency, the law has to use other tests. The crime of “indecent assault” is, technically, now called sexual assault. This is a serious offence punishable with up to ten years’ imprisonment. What makes the assault so serious is the sexual element. The crime is defined as a situation where A intentionally touches B sexually, where B doesn’t consent to the touching and A doesn’t reasonably believe that B consents. The test for whether the touching is sexual is in two parts. Touching will be sexual if it is either naturally sexual, like touching someone’s sexual organs, or if it is judged to be sexual in the circumstances. One case involved a man who had grabbed a girl’s tracksuit bottoms in the area of her pocket and tried to cover her mouth, having first said, as he approached, “Do you fancy a shag?” Touching someone’s tracksuit bottoms or their mouth is not necessarily sexual but it could be, and was found to be so in that situation. He was convicted.

Outraging public decency is another crime. It is an offence for a person “in public” to commit “an act of such a lewd, obscene or disgusting nature as to amount to an outrage to public decency”. (It is illegal regardless of whether it tends “to deprave and corrupt” those who actually see it.)

“In public” means that the conduct must occur in a place where there was a real possibility at the time that at least two members of the general public might see it, although not necessarily simultaneously. The offence is not limited to acts involving a sexual element. It has been applied, for example, to disinterring a corpse.

Earlier this summer, two 21-year old women were prosecuted for the crime of outraging public decency after they performed a deliberate “wardrobe malfunction”. Abbi-Louise Maple and Rachel Marchant lifted their tops and flashed their bare chests at a CCTV camera before collapsing in giggles on the beach at Worthing, West Sussex. The CCTV operator called the police and minutes later the two girls were arrested, interrogated and then charged. The offence carries a maximum sentence of six months prison or a £5,000 fine if tried in the magistrates’ court or worse if tried in the Crown Court. Miss Maple said: “There was nobody else around that we could see. The beach was empty, so we didn't think it would be a problem”. The case was eventually dropped by the Crown Prosecution Service after it said it was not in the public interest to proceed with the case.

One difficulty in this area of law is that standards change over time. In a case in 1848, Chief Baron Pollock said “The word ‘indecently’ has no definite legal meaning”. He then recalled that in earlier times he had seen judges get down from their bench, go to a corner of the court (to a porcelain vase) and urinate “in the presence of ladies”. But things had got more polite by 1848 and Pollock conceded that such conduct “would be considered indecent now”.

In 1997, the appeal court in Ontario, Canada confirmed that when a student, Gwen Jacobs, walked through a park topless in hot weather she wasn’t guilty of an indecent act. After the case, hundreds of women went topless in Ontario in hot weather. Then civil rights got entangled with commerce. A court confirmed that baring breasts for business is an indecent act. But topless women who cleaned car windscreens in exchange for “donations” evidently enjoyed generous charity.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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