Indecent exposure

Indecent exposure is a legal expression that describes the deliberate public exposure by a person of a portion of their body in a manner contrary to local standards of appropriate behavior. Laws and social attitudes regarding indecent exposure vary significantly in different countries. It ranges from outright prohibition to prohibition of exposure of certain body parts, such as the genital area, buttocks or breasts.

For the album by George Carlin, see Indecent Exposure (album). For the novel by Tom Sharpe, see Indecent Exposure (novel).
Not to be confused with Exhibitionism.
Streaking is a type of indecent exposure

Decency is generally judged by the standards of the local community, which are seldom codified in specifics in law. Such standards may be based on religion, morality or tradition, or justified on the basis of "necessary to public order".[1] Non-sexual exhibitionism or public nudity is sometimes considered indecent exposure. If sexual acts are performed, with or without an element of nudity, this can be considered gross indecency, which is usually a more serious criminal offence. In some countries, exposure of the body in breach of community standards of modesty is also considered to be public indecency.

The legal and community standards of what states of undress constitute indecent exposure vary considerably and depend on the context in which the exposure takes place. These standards have also varied over time, making the definition of indecent exposure a complex topic.

History

What is an inappropriate state of dress in a particular context depends on the standards of decency of the community where an exposure takes place. These standards vary from time to time and can vary from the very strict standards of modesty in places such as Afghanistan and Saudi Arabia, which require most of the body to be covered, to tribal societies such as the Pirahã or Mursi where full nakedness is the norm.[2] There is generally no implication that the state of dress objected to is of a sexual nature; and if such an allegation were to be made, the act would generally be described as "gross indecency".

The standards of decency have varied over time. During the Victorian era, for example, exposure of a woman's legs, and to some extent the arms, was considered indecent in much of the Western world. Hair was sometimes required to be covered in formal occasions as in the form of a hat or bonnet. As late as the 1930s — and to some extent, the 1950s — both women and men were expected to bathe or swim in public places wearing bathing suits that covered above the waist. An adult woman exposing her navel was also considered indecent in parts of the West into the 1960s and 1970s, and even as late as the 1980s. Moral values changed drastically during the 1990s and 2000s, which in turn changed the criteria for indecent exposure. Public exposure of the navel has been accepted during the 1990s, such as on beaches, while in the 2000s, the buttocks can be exposed while wearing a thong. For many years, however, it was quite common for women to go topless at public beaches throughout Europe and South America and even some parts of the United States.[3] Over the last decade (2010 till 2020) the numbers of women going topless on beaches has taken a sharp drop. This is often explained by the rising popularity of the smartphone, combined with websites where peeking men share pictures of (partly) naked women.

Breastfeeding

Breastfeeding in public does not constitute indecent exposure under the laws of the United States, Canada, Australia, or Scotland.[4] In the United States, the federal government and all 50 states[5] have enacted laws specifically protecting nursing mothers from harassment by others. Legislation ranges from simply exempting breastfeeding from laws regarding indecent exposure, to outright full protection of the right to nurse.[6]

Public clothing

Public clothing varies by country and may be regulated by law. What parts of the body must be covered varies by region. Although genitals are usually expected to be covered in public in almost all societies, when it comes to other parts of the body such as female breasts, midriff, legs or shoulders, norms vary. For example, in some African cultures, it is the thighs, not the breasts, which must be covered.[7] In some societies, the head hair, especially female, must be covered, usually with a scarf. The vast majority of cultures accept that the face can and must be seen, but some cultures (especially in the Middle East) require that a woman's face be covered under a burqa. In conservative societies, appearing in a public place in clothing that is deemed 'indecent' is illegal.[8][9][10] In many countries there are exceptions to the general rules (social or legal) regarding clothing. For instance, a country which generally prohibits full nudity may allow it in designated places, such as nude beaches, or during various social events such as festivals or nude protests.

Outraging public decency

Outraging public decency is a common law offence in England and Wales[11] and Hong Kong. It is punishable by unlimited imprisonment and/or an unlimited fine.[11]

The first recorded example of the offence was Sedley's Case (1675) Strange 168, 1 Sid 168 – Sir Charles Sedley was prosecuted for urinating on a crowd from the balcony of Oxford Kate's tavern in Covent Garden.[12]

Modern case law has established two elements that must be satisfied for the offence to have been committed:[13][14]

  1. the act was of such a lewd character as to outrage public decency; this element constitutes the nature of the act, which has to be proved before the offence can be established, and
  2. the act took place in a public place and must have been capable of being seen by two or more persons who were actually present, even if they did not actually see it.

The offence is currently prosecuted around 400–500 times per year in England and Wales.[13][15]

Europe

Attitudes towards nudity vary by country and are generally most relaxed in Scandinavia, where genitals and breasts are not normally considered indecent or obscene. Hence, laws and societal views on public nudity are generally relaxed.[16] In Finland, it is very typical for patrons to bathe nude in the intense heat of saunas.

In the Netherlands, public nudity is allowed at sites that have been assigned by the local authorities and "other suitable places". On nudist beaches, in unisex saunas and in swimming pool changing rooms, remaining partially clothed is frowned upon and the social norm is to undress.

In Barcelona, public nudity was a recognised right. However, on 30 April 2011, the Barcelona City Council voted a by-law forbidding walking "naked or nearly naked in public spaces" and limiting the wearing of bathing costumes to pools, beaches, adjacent streets and sea-side walks.[17]

Other countries, such as the UK, Ireland or Poland,[18] are more conservative.

United Kingdom

Legislation concerning public nudity varies among the countries of the United Kingdom. In England and Wales public nudity is not in itself illegal; the use of the term "indecent exposure" dates back to earlier criminal law.

England and Wales

Here during the 19th and 20th centuries, indecent exposure was prosecuted under section 28 of the Town Police Clauses Act 1847[19] or section 4 of the Vagrancy Act 1824. The latter contained a provision for the prosecution of:

every person wilfully openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female ...

This provision was repealed by section 66 of the Sexual Offences Act 2003 which replaced the offence of "indecent exposure" and other sexual offences with an offence that is more specific and explicit, exposure.[20] It is defined as

A person commits an offence if—

  1. he intentionally exposes his genitals, and
  2. he intends that someone will see them and be caused alarm or distress.[21]

The maximum penalty is two years' imprisonment, very rare as most cases are dealt with by a fine or through community service.[21][22] If sentenced to a term of imprisonment or a community order in excess of 12 months such convicts (offenders) – or if the person they exposed themselves to was aged under 18 years old – they must appear on and sign the Violent and Sex Offender Register.[23]

In the past public nudity in England and Wales could also be punished as "disorderly behaviour" under the Public Order Act 1986, sections 4A and 5.[24] However, the law was clarified in the spring of 2018 and those sections are no longer considered to apply to simple public nudity. Guidance from the Crown Prosecution Service[25] and the College of Policing[26] does not recommend prosecution for public nudity if there is no implied intent to cause alarm (or distress). Intention can be inferred by circumstantial evidence; see Intention in English law.

Scotland

Under Scots law, "indecent conduct" in a public place, such as exposing the genitals or engaging in sexual activity, can constitute the common law offence of public indecency.[27] Stephen Gough, a man known as the "Naked Rambler" who hiked across Britain wearing only shoes, was arrested numerous times in Scotland. He was convicted of the common law offence of breach of the peace and spent time in prison for contempt of court for refusing to wear clothes whilst in court.[28]

Northern Ireland

The Sexual Offences (Northern Ireland) Order 2008 brought the legislation regarding indecent exposure in Northern Ireland into line with that in England and Wales.[29]

United States
Main article: Indecent exposure in the United States
Left: In New York City, toplessness in public is allowed.[30] Photo shows topless woman on a rainy day at Dyke March, New York, 2013. Right: Some states' rules in US do not allow public exposure of female nipples.[31] Photo shows a woman at a U.S. beach with her nipples covered with pasties, so as to conform to the local rules.

The laws governing indecent exposure in the United States vary according to location. In most states, public nudity is illegal. However, in some states, it is only illegal if it is accompanied by an intent to shock, arouse, or offend other persons. Some states permit local governments to set local standards. Most states exempt breastfeeding mothers from prosecution.

The phenomenon widely known as flashing, involving a woman exposing bare nipples by suddenly pulling up her shirt and bra, is public exposure and is therefore defined by statute in many states of the United States as prohibited criminal behavior.[32]

Canada

In Canada, s.173 of the Criminal Code[33] prohibits "indecent acts".[34] There is no statutory definition in the Code of what constitutes an indecent act, other than the exposure of the genitals and/or female nipples for a sexual purpose to anyone under 16 years of age. Thus, the decision of what states of undress are "indecent", and thereby unlawful, is left to judges. Judges have held, for example, that nude sunbathing is not indecent.[35] Also, streaking is similarly not regarded as indecent.[36][37] Section 174 prohibits nudity if it offends "against public decency or order" and in view of the public. The courts have found that nude swimming is not offensive under this definition.[38]

Toplessness is also not an indecent act under s.173. In 1991, Gwen Jacob was arrested for walking in a street in Guelph, Ontario while topless. She was acquitted in 1996 by the Ontario Court of Appeal on the basis that the act of being topless is not in itself a sexual act or indecent.[39] The case has been referred to in subsequent cases for the proposition that the mere act of public nudity is not sexual or indecent or an offense.[40] Since then, it is legal for a female to walk topless in public anywhere in Ontario, Canada.[41]

Australia
Protesters gathered outside a courthouse to protest against the arrest of Simon Oosterman (second from left), Auckland's 13 February 2005 WNBR organizer.

In Australia, it is a summary or criminal offence in some States and Territories to expose one's genitals (also referred to as – 'his or her person')[42] in a public place or in view of a public place. In some jurisdictions, exposure of the genitals alone does not constitute an offence unless accompanied by an indecent act, indecent behaviour, grossly indecent behaviour, obscenity, intention to cause offence, or deliberate intention. The applicable law is different in each jurisdiction and in several jurisdictions the offence of indecent exposure does not apply.

Penalties vary between jurisdictions and are summarised below. Specific state Acts, are as follows:

  • Australian Capital Territory – Crimes Act 1900, section 393 – 'indecent exposure' – penalty 12 months. Under the Nudity Act 1976, the responsible minister may declare a public area where public nudity is permitted.[43][44]
  • New South Wales – Summary Offences Act 1988, section 5 – 'wilful and obscene exposure' – penalty six months.[45]
  • Northern Territory – Summary Offences Act, section 50 – 'indecent exposure' – penalty 6 months.[46]
  • South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively.[47]
  • Queensland – Summary Offences Act 2005 No. 4, section 9 – 'wilful exposure' – penalty 12 months.[48]
  • Tasmania – Police Offences Act 1935, section 21 – 'Prohibited behaviour' – penalty 12 months.[49] Police Offences Act 1935, section 14 – 'Public decency' – one penalty unit.[50]
  • Victoria – Summary Offences Act 1966, section 19 – 'wilful and obscene exposure' – penalty two years.[51] Under the Nudity (Prescribed Areas) Act 1983[52] the responsible minister may declare a public area where public nudity is permitted.
  • Western Australia – Criminal Code, section 203 – 'Indecent acts in public' – criminal penalty two years. Summary conviction penalty: 9 months and fine of $9,000.[53]

Definition of person

The laws of New South Wales, the Australian Capital Territory and the Northern Territory use the term "person", while in the other States the exposure refers to the genital area. It has been noted that a term such as "exposing one's person" relates back to the United Kingdom Vagrancy Act 1824 and Evans v Ewels (1972)[54] where it was said that the word "person" was a genteel synonym for "penis" or "vulva". However, it has been suggested that the word "person" in s5 of the (NSW) Summary Offences Act is not limited to "penis" or "vulva". For example, in R v Eyles (1997) the offender was seen masturbating in his front garden and charged with obscene exposure under the NSW Act.[42][45] The judge noted, obiter dicta, that

In the case of both males and females, the parts of the body which are capable of being employed for the purpose of obscene exposure are limited. The concepts of obscenity and exposure in a practical sense restrict the potential operation of the provision. There is a question as to whether there is any further restriction to be found in the word "person". The Crown Advocate has submitted that there may be circumstances in which the exposure of the breasts of a woman is capable of being regarded as obscene, and that it is not difficult to imagine circumstances in which the exposure of a person's buttocks could be obscene.[42]

New Zealand

In New Zealand, indecent exposure is considered to be where a person "intentionally and obscenely exposes any part of his or her genitals".[55] Otherwise there is no specific law prohibiting nudity in public places, although lesser charges may apply depending on the behaviour of the individual in question.

The High Court of New Zealand has upheld a conviction of disorderly conduct for nudity in the street, because it was not a place where nudity was known to occur or commonplace. Being nude in the street is likely to incur a small fine if a complaint is made against the person, or if the person ignores a police request to cover themselves. Being prosecuted for nudity on a public beach, or any place where nudity might be expected, is very unlikely.[56][57][58]

Saudi Arabia

Women in Saudi Arabia were required to wear robes and a headscarf when in public[59] although Crown Prince Mohammed bin Salman has said that it is not required. In September 2019, Saudi Arabia issued the public decency law identifying the rules related to the public decency that citizens and tourists should follow in compliance with Saudi law.[60]

See also

References
  1. "Indecent exposure". Merriam-Webster's Collegiate Dictionary (Tenth ed.). Merriam-Webster. 2001. p. 589. ISBN 0-87779-713-7.
  2. "Legality of Nudism in Public Places?". politics.stackexchange.com. Retrieved 2 March 2018.
  3. "Here's Where It's Legal for Women to Go Topless in the U.S." Time. Retrieved 2 March 2018.
  4. "Breastfeeding etc. (Scotland) Act 2005". Retrieved 22 May 2007.
  5. Sonja Haller (25 July 2018). "Finally! In 2018 it's legal to breastfeed in public in all 50 states". USA Today.
  6. Samakow, Jessica (1 August 2014). "These Are All The States Where It's Legal To Breastfeed In Public". Huffington Post. Retrieved 2 March 2018.
  7. Tom Holloway (15 May 2003). "MPs defend Swazi bare breasts". BBC News.
  8. "Nigerian skimpy dressers arrested". BBC News. 27 July 2007.
  9. "Inquiry into Saudi TV presenter's clothing". BBC News. 27 June 2018.
  10. Frances Harrison (27 April 2007). "Crackdown in Iran over dress codes". BBC News.
  11. Halsbury's Laws of England 5th edition, volume 26, paragraph 717
  12. R v Hamilton [2007] EWCA Crim 2062 at para. 18
  13. "Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Consultation Paper No. 193)" (PDF). Law Commission. Archived from the original (PDF) on 2 June 2011. Retrieved 14 July 2011.
  14. [2007] EWCA Crim 2062, [2008] QB 224 para 21 (CA)
  15. Common Law Offences Charged and Reaching a First Hearing in Magistrates' Courts, Crown Prosecution Service
  16. Einhorn, Eric S.; Logue, John (2003). Modern Welfare States: Scandinavian Politics and Policy in the Global Age. Oxford: Harcourt. p. 309. ISBN 0-275-95044-1.
  17. APNEL
  18. "Model fined for sunbathing topless; Ombudsman appeal mulled". ABS-CBN News. AFP. 8 November 2008.
  19. "Town Police Clauses Act 1847 (as enacted)" (PDF). Legislation.Gov.Uk. Retrieved 19 May 2018.
  20. Cox, David J.; Stevenson, Kim; Harris, Candida; Rowbotham, Judith (2015). Public Indecency in England 1857–1960: 'A Serious and Growing Evil'. SOLON Explorations in Crime and Criminal Justice Histories. Volume 6. Routledge. p. 144. ISBN 9781317573838.
  21. Legislation.gov.uk. "Sexual Offences Act 2003". Retrieved 14 September 2010.
  22. "Equality Act 2010". legislation.gov.uk. The National Archives. Retrieved 9 February 2017.
  23. Dan Bunting (7 April 2015). "Sex Offenders Register". UK Criminal Law Blog.
  24. "Freedom of expression – nakedness in a public place". UK Human Rights Blog. 31 October 2013.
  25. "Nudity in Public – Guidance on handling cases of Naturism". Crown Prosecution Service.
  26. "Briefing note: Public nudity advice and decision aid" (PDF). College of Policing.
  27. "Public decency". Sexual Health Scotland. 4 February 2013.
  28. "Naked rambler bares all as he walks free from prison". The Daily Telegraph. 18 July 2012. Retrieved 10 July 2019.
  29. "The Sexual Offences (Northern Ireland) Order 2008". Article 70, Order of 2008. legislation.gov.uk.
  30. Goodman, J. David (15 May 2013). "See Topless Woman? Just Move On, Police Are Told". Retrieved 25 August 2013.
  31. Bonaguro, Alison (10 July 2015). "Why Are Women's Nipples Banned in Public and on Instagram, but Men's Nipples Aren't?". Men's Health. Retrieved 25 September 2017.
  32. "Criminal Code". Topical Index: State Statutes 2. Cornell University Law School. 14 April 2008. Retrieved 14 September 2010.
  33. "Criminal Code of Canada, 1985, Part V, Sexual Offences". Efc.ca. Retrieved 14 March 2013.
  34. Part 173(1)(a) of the Criminal Code provides, in part – Indecent acts – 173. (1) Every one who wilfully does an indecent act (a) in a public place in the presence of one or more persons...is guilty of an offence punishable on summary conviction.
  35. R. v. Beaupré, 1971, British Columbia Supreme Court. Held: "the phrase 'indecent act' connotes something more active, with greater moral turpitude than the mere state of being nude in a public place."
  36. R v Springer, 1975, Saskatchewan District Court
  37. R v Niman, 1974, Ontario Provincial Court
  38. R. v. Benolkin, 1977, Saskatchewan Court of the Queen's Bench. It was found that "It cannot be an offence to swim in the nude at a lonely place in Canada in summer. That is part of the pleasure of summer in Canada, particularly to young males. If somebody comes along unexpectedly or if the swimmer misjudged the loneliness of the place the act cannot suddenly become criminal.".
  39. "Judgment C12668, R. vs. Jacob". Province of Ontario Court of Appeal. 9 December 1996. Retrieved 16 February 2009. Cite journal requires |journal= (help)
  40. District of Maple Ridge v. Meyer, 2000 BCSC 902 (CanLII). See esp. para [49] and [55].
  41. Amy Dempsey (28 August 2010). "Topless in Guelph: It started out as a shy event". Toronto Star. It’s been nearly 20 years since Gwen Jacob took a history-making topless jaunt through downtown Guelph. It’s been 15 years since charges against her were overturned in a case that gave Ontarian woman the legal right to be topless in public — a right previously exclusive to men.
  42. R v Eyles [1997] NSWSC 452 (1 October 1997), Court of Criminal Appeal (NSW, Australia).
  43. Crimes Act 1900 (ACT) s 393 Indecent exposure.
  44. Nudity Act 1976 (ACT).
  45. Summary Offences Act 1988 (NSW) s 5 Obscene exposure.
  46. Summary Offences Act (NT) s 50 Penalty for indecent exposure of the person.
  47. Summary Offences Act 1953 (SA) s 23 Indecent behaviour and gross indecency .
  48. Summary Offences Act 2005 (Qld) s 9 Wilful exposure.
  49. Police Offences Act 1935 (Tas) s 21 Prohibited behaviour.
  50. Police Offences Act 1935 (Tas) s 14 Public decency.
  51. Summary Offences Act 1966 (Vic) s 19 Wilful and obscene exposure.
  52. Nudity (Prescribed Areas) Act 1983 (Vic)
  53. Criminal Code (WA) section 203.
  54. Evans v Ewels [1972] 1 WLR 671.
  55. http://www.legislation.govt.nz/act/public/1981/0113/latest/DLM53587.html
  56. "Nudity in Public - Legal Aspects". www.freebeaches.org.nz. Retrieved 11 January 2019.
  57. "Nudity not necessarily an offence". Stuff. Retrieved 11 January 2019.
  58. "Battle for the beach: Nudists clash with Papamoa beachgoers". NZ Herald. 25 March 2017. ISSN 1170-0777. Retrieved 11 January 2019.
  59. "Saudi woman arrested for wearing a skirt is released without charge". The Guardian. Reuters. 20 July 2017.
  60. "Saudi Arabia issues public behavior guidelines". Arab News. 28 September 2019. Retrieved 29 September 2019.

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