A woman, who was sunbathing topless on 20 August 2006 in what is commonly known as the nude bathing area between Gnejna and Ghajn Tuffieha, had a sentence condemning her for indecent exposure confirmed last week in the Appeals Court.

The woman’s name was not identified.

She had been condemned by the Magistrates Court in November 2006 but was freed on condition she did not commit a further crime in the following week.

However, the woman appealed.

She argued that topless sunbathing in a remote beach is not a crime, nor does it render the woman naked. “Just as a man has his genital area covered but his breast uncovered and is not considered to be naked, so too with a woman. Half-naked is not naked and a half-naked woman is not a naked woman,” the woman argued.

As to the second part of the law, “indecently dressed’, this constitutes a subjective assessment and not a legal basis.

Besides, the woman continued, the bay in question does not even have any notice forbidding a woman from sunbathing topless.

From the evidence given in court it transpired the woman was sunbathing topless in the area of the bay famous for nude bathing. Next to the woman there was a man who was completely nude.

The police were called to the spot by people on a boat who reported indecently dressed people in the area. The police took the particulars of the man and the woman.

In her argument, the woman added that when bikinis were introduced, there was a huge outcry all over the world, but no one today dares say that this is indecent dress. Besides, the woman added, there are a huge number of paintings, films and statues where a woman’s breast is uncovered and no one considers this as being offensive.

The woman then added that she could not be found guilty of a crime that is not a crime and mentioned the European Convention on Human Rights in defence of her argument. The Appeals Court thus sent the case to the Constitutional Court, which on 28 March decided that a topless woman is considered by Maltese society as being indecently dressed. The law thus cannot be considered ‘in vacuo’ but within the context of public order in Malta.

The woman did not appeal this ruling and the Appeals Court had no other option last week except to confirm that the topless woman was guilty. Everyone in Malta knows about this prohibition, and the bay in question, even if difficult to access, still remains a public place.