“Fashion Police” An Arresting Symposium at Fashion Law Institute

Photo courtesy Fashion Law Institute

On Thursday morning, The Fashion Law Institute hosted a double-header symposium giving new meaning to the term “Fashion Police.” Luckily there were no creepy holograms of Joan Rivers on the red carpet saying “Who are you wearing?” and no Mani-cams. Instead, cool flower arrangements were handcuffed together on the stage and as table centerpieces.

Thankfully the breakfast spread was unchained. The first panel, “Retail Ransacked: Theft on the Rise,” dealt with the smash and grabs and other forms of shoplifting/stealing that’s become endemic since the pandemic. How do you protect customers, employees, and property from this expensive and often dangerous crime?

Professor Susan Scafidi, Estelle Strykers-Santiago, Christopher Hornig,
Matthew Bauer (not pictured Ashley Valdes)
Photo courtesy Fashion Law Institute

Panelists included Matthew Bauer, President, Madison Avenue Business Improvement District; Christopher Hornig, VP, Assistant General Counsel, Saks Off Fifth; Estelle Strykers-Santiago, Director, Community Partnerships Unit, New York County District Attorney’s Office; and Ashley Valdes, Principal Counsel, Warby Parker. Professor Susan Scafidi, Founder and Director, Fashion Law Institute at Fordham, served as the moderator.

Despite the generally held narrative that luxury stores have insurance to cover merchandise that, shall we say, walks out the door, Bauer pointed out that shoplifting is “not a victimless crime. Employees feel shaken up and violated.” Organized retail crime with intent to resell and a fencing operation to get rid of merchandise is happening on one of our most exclusive streets. “They are ‘shopping’ to take goods and sell them. They know exactly what they are looking for,” he said.

On the plus side, Bauer is grateful for the “terrific support from the 19th precinct who know everyone’s name” as they keep a constant presence on the street. They will even assist by guarding the door when a store receives a shipment. With grand larceny up 61% this year alone, I guess they’d better.

According to Bauer, DA Bragg (not generally known as being tough on crime) has committed to “following the money to see where these items are sold. Federal bill HR5502 details efforts to track what’s being sold and where it comes from.” Some crime rings are being discovered and cracked down on — in late May, the New Liberty Pawn Shop Ring was busted with 41 individuals charged for selling stolen items on eBay.

According to Hornig, who expressed his views rather than those of Saks Off Fifth, insurance often does not apply to theft, but the law is tricky and can turn the tables making the perpetrator the victim. False arrest discrimination, the monitoring of theft rings online, which could raise privacy issues, and the potential to be sued for police “injuring” a suspect by perhaps taking hold of their arm, all factor in. “There’s a balance you have to create between customers and criminals.

There’s also a widespread dislike of algorithm-like facial recognition software (which some states prevent the use of) and a lot of legal concern,” he said. “We have to operate based on actions, not people’s appearances. Salespeople are given active shooter training and told to avoid a confrontation. Obviously, the people are more important than the property.”

Strykers-Santiago outlined a small business alliance that the DA’s office has formed with several B.I.D.’s on Zoom with a five-point program to give the viewpoint from law enforcement. Briefly, these are 1) to target organized crime involved in retail theft, 2) to go after the recidivists, 3) not to arrest those who commit low-level crimes but refer them to get help, whether it’s for mental health or because they’re “unhoused,” through other social agency programs addressing the root issues, 4) to work closely between NYPD and the community, and 5) to provide transparency about what happens after an arrest is made with supporting documents.

Valdes gave us the low down on “shrinkage” (no, not the George Costanza kind, lol). Since Warby Parker offers the “home try-on” of 5 pairs of glasses at a time, scammers gonna scam. Most retail establishments don’t want to advertise the theft that goes on, but since it was in the news, she recounted how someone in Georgia stole $130,000 worth of frames by creating a bunch of fake accounts and using pre-paid cards. “Our customers noticed them for sale on Poshmark,” she said.

This illustrates the need for resale platforms to have checks and balances to determine if stolen merchandise is in the marketplace. At least this person did some prison time through efforts by law enforcement and the loss prevention team.

Are there ways to curtail theft through store design? Some ideas mentioned included using mirrors, lighting, and blacking windows with signage. Keep less on the racks with more in the stockroom and hang clothes with the hangers facing out, so they are more difficult to quickly remove are suggested methods of preventing opportunistic theft.

Will all retail look like a CVS with everything in a locked case or perhaps a bank vault? All-over visibility is critical, but the top recommendation is for the DA’s office to prosecute, or else criminals will think they’re just going to get away with it.

Professor Susan Scafidi, Professor Kimberly Jenkins, Jeff Trexler, Marilee Holmes Photo: Courtesy Fashion Law Institute

The second panel, “Decency Exposed: The New Culture Wars,” is a reprisal of a panel given initially at San Diego Comic-Con as Moderator Jeff Trexler is serving as Interim Director of Comic Book Legal Defense Fund. This one was a wild ride and went everywhere, so buckle up! “Decency is what you were concerned with in the 1950s,” said Trexler after an introductory clip from the famous “Are you decent?” scene in the 1946 film noir “Gilda” starring Rita Hayworth was played.

“I’m almost decent, but it depends what you do with these zippers,” quipped an always-on-theme Professor Scafidi, referring to her chic-ly provocative Alexander McQueen zipper blazer. Other panel members were Marilee Holmes, Senior Director, Diversity, Inclusion and Belonging, Save the Children; and Professor Kimberly Jenkins, Founder, The Fashion and Race Database and Artis Solomon Consulting.

Scafidi explained the distinction between decent appearance vs. action in three categories: gender, racial, and regional differences. For instance, indecent exposure or public lewdness varies with a “female person” (the Fashion Law Institute is still binary) who “decently” cannot have a breast exposed below the areola. Another projected slide gave the guidelines for how short a skirt can be illustrated by a photo of a woman’s leg with markings such as “slut” and other pejorative terms when it got to the nether regions.

Next, she discussed the always complicated legal definition of “is it obscene?” and how this applies to creative works. Trexler’s winning defense in the state of Virginia of the graphic novel “Gender Queer” was briefly mentioned as a case in point. Professor Jenkins brought up her recent visit to a West Indian parade where women were topless as being allowed as it was “confined to a certain space and time.”

Performances and shows are also protected under these laws. She spoke of her “learning and resource platform, The Fashion and Race Database,” with examples from ‘Life in Philadelphia’ (an 1828 book of comic lithographs) featuring images that “mock and dehumanize P.O.C. for getting it wrong in fashion.” White people were apparently known for moving the goalposts and for saying we don’t wear that anymore once something was adopted by black people.

By the early 20th century, white people were “consuming black culture and appropriating black music style known as Negrophilia,” she said. “Black culture is seen as closer to primitive culture,” pointing out the emphasis on the black body – for instance, that of Serena Williams. “Fashion relies on aspiration and hierarchy. White people often take a black trend, elevate it, refine it, and then there’s widespread adoption.” Meanwhile, the “shopping while black” phenomenon was discussed – many black people feel the need to be better dressed than whites to not be suspected of shoplifting.

Holmes, who spoke of her former job as in-house counsel at Wilhelmina Models, was in charge of fostering an environment for kids. Deciding that there should be rules of decency around children but not wanting to infringe on “the style of the models” in their uber-short cutoffs, she got a separate entrance to the agency for kids. (My thoughts: if you’re letting your kids model, you’ve got bigger worries than that one). She also was looking out for the kids in terms of photographs. “What images do you want out there for perpetuity? What kind of exposure?”

Just a few years ago, we had #MeToo, and now we’re in the gender fluidity era. “Does drag queen story hour equal recruitment? True transgender status is a protected class – civil rights are involved. Is this like the one-time taboo of interracial marriage that children shouldn’t see?”

Holmes believes one should wear what one wants, not necessarily the “dress code” assigned at birth. “We’re moving away from that. Who are you today? You tell me what that is?” she said. “There’s a fear of fluidity when there should be a freedom,” agreed Jenkins. “Are you black or white? Gay or straight? We don’t really like that fluidity — it makes us nervous.”

Lastly, the panel discussed the final frontier of social media, influencers, and technology. The idea of perfecting the body to be successful results from Instagram models or influencers on TikTok. Kids today think anybody can make money off social media if they have the right look. “Technology will always move beauty forward,” said Prof. Scafidi. The stigma of using plastic surgery is all but removed. She pointed out how even hair dye used to be hidden. Of course, now people use crazy colors not found in nature, so obviously, that’s a thing of the past.

How does this all affect body positivity in light of minors? Even those who talked the talk of the most progressive left agreed that they don’t want their pre-teen children on social media. “Your nose looks 20% bigger on a selfie camera. Plastic surgeons have said that people are asking for noses so small that you wouldn’t be able to breathe through them,” Scafidi added.

Hmmm, I would have thought Michael Jackson was a cautionary tale. And how will people adapt to a future where not everyone agrees this is the way forward? Prof. Scafidi sums it up in one word “I think it will be uncomfortable.”

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Laurel Marcus

OG journo major who thought Strunk & White's "The Elements of Style" was a fashion guide. Desktop comedienne -- the world of fashion gives me no shortage of material.

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