Indecent exposure

As a legal expression, indecent exposure is the deliberate exposure in public or in view of the general public by a person of a portion or portions of his or her body, in circumstances where the exposure is contrary to local moral or other standards of appropriate behavior. Social and community attitudes to the exposing of various body parts and laws covering what is referred to as 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.

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 itself a complex topic.

Overview

It is generally accepted, at least in western countries, that a naked human body is not in itself indecent. That principle is reflected, for example, in depiction of the human form in art of various forms. Nevertheless, as a general rule, it is also commonly expected that people when they appear in a public place will be appropriately attired. Inappropriateness is viewed in context, so that, for example, what may be appropriate on a beach may be inappropriate in a street, school or workplace. Depending on the context, some degree of inappropriateness may be tolerated, and perhaps described as eccentric, but in extreme cases of inappropriateness it may be regarded as "crossing the line". Besides the social disapproval of such a state of dress, most jurisdictions have laws to "maintain social order", variously described as public nudity, indecent exposure, as an affront to public morality, public nuisance, besides others. 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. 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 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 a form 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 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 in beaches, while in the 2000s, the buttocks can be exposed while wearing a thong. Today, however, it is quite common for women to go topless at public beaches throughout Europe and South America and even some parts of the United States.

Although the phenomenon widely known as flashing, involving a woman exposing bare nipples by suddenly pulling up her shirt and bra, may be free from sexual motive or intent, it nonetheless is public exposure and is therefore defined by statute in many states of the United States as prohibited criminal behavior.^[2]

The motivation of the exposure is sometimes based on it being unusual, attention-getting, sexually arousing, or separately, as in a public policy protest, inappropriate and to show disrespect to the enemy side. The effects (including negative consequences) may be enhanced by intended or unintended publication of a photograph or film of the act, which would also include mooning.

Breastfeeding in public does not constitute indecent exposure under the laws of the United States, Canada, Australia, or Scotland.^[3] In the United States, the federal government and the majority of states 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.

Europe

In Scandinavia, people generally have a relaxed attitude towards nudity, and genitals and nipples are usually not considered indecent or obscene. Hence, laws and societal views on public nudity are generally relaxed.^[4] In Finland, it is very typical for patrons to bathe nude in the intense heat of saunas. Finnish university students, especially medical school students, have their own traditions what it comes to "indecent exposure".^[5] In the Netherlands on nudist beaches, multigender saunas and in the changing rooms of swimming pools, keeping one's clothes on is frowned upon. There it is good manners to undress. Nudity in the Netherlands is less sexualized as in surrounding Western-European countries.

In Barcelona, public nudity was a recognised right. However, on April 30, 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.^[6] In the Netherlands, public nudity is allowed at sites that have been assigned by the local authorities and "other suitable places."^[7]

United Kingdom

In England and Wales, the offence of "indecent exposure" and other sexual offences were replaced by the more specific and explicit Sexual Offences Act 2003, section 66. Current laws apply only to genital exposure with intent to shock those who do not want to see them. The maximum penalty is two years' imprisonment, but this is extremely rare as most cases are dealt with by a fine or through community service.^[8][9] Public nudity can also be punished as "disorderly behaviour" under the Public Order Act 1986, sections 4A and 5.^[10] British singer George Michael was arrested for showing his private parts to a police officer.

The situation in Northern Ireland is complex as some parts of this Act apply but others do not and the Assembly is considering new legislation.

Under Scots law, public indecency is covered by Crimes of indecency.

Parts of the United Kingdom Vagrancy Act 1824 also continue in force, part of which provides:

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...

If found guilty of the offence, it is mandatory that the offender signs on to VISOR, the Violent and Sexual Offenders Register.

United States

Canada

In Canada, s.173 of the Criminal Code^[11] prohibits "indecent acts".^[12] 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.^[13] Also, streaking is similarly not regarded as indecent.^[14][15] 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.^[16]

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.^[17] 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.^[18] Since then it is legal for a female to walk topless in public anywhere in Ontario, Canada.^[19]

Australia

Protesters gathered outside a courthouse to protest against the arrest of Simon Oosterman (second from left), Auckland's 13 Feb 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')^[20] 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.^[21][22]
• New South Wales – Summary Offences Act 1988, section 5 – 'wilful and obscene exposure' – penalty six months.^[23]
• Northern Territory – Summary Offences Act, section 50 – 'indecent exposure' – penalty 6 months.^[24]
• South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively.^[25]
• Queensland – Summary Offences Act 2005 No. 4, section 9 – 'wilful exposure' – penalty 12 months.^[26]
• Tasmania – Police Offences Act 1935, section 21 – 'Prohibited behaviour' – penalty 12 months.^[27] Police Offences Act 1935, section 14 – 'Public decency' – one penalty unit.^[28]
• Victoria – Summary Offences Act 1966, section 19 – 'wilful and obscene exposure' – penalty two years.^[29] Under the Nudity (Prescribed Areas) Act 1983 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.^[30]

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)^[31] where it was said that the word "person" was a genteel synonym for "penis" or "vulva". However, it has been held 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 Matter No 60305/97 (1997) NSWSC 452 (1 October 1997) the offender was seen masturbating in his front garden and charged with obscene exposure under the NSW Act.^[20][23]

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.^[20]

However -

It is unnecessary and inappropriate to decide in the present case whether her submissions in that regard are correct. The jurisdiction which this Court is exercising is a jurisdiction confined to determining questions of law which arise in the case before the District Court. No question arises in the present case as to whether there are any circumstances in which the exposure by a female of breasts, or by a female or male of buttocks, could involve a contravention of s5. The prosecution case against the appellant was that he obscenely exposed his penis and other genitals. It is sufficient for resolution of the present case to say that this was capable of constituting exposure of "his person" for the purposes of the proceedings against him.^[20]

India

The Indian Penal Code (IPC) is often used to charge sex workers with vague crimes such as "public indecency" or being a "public nuisance" without explicitly defining what these consist of.^[32]

See also

• Public urination
• Public sex
• Intimate parts (Islam)
• Anasyrma
• Exhibitionism
• Obscenity
• Sex crime
• Social nudity
  • Nudity and children
  • Public nudity
  • Streaking
• Toplessness
• Wardrobe malfunction

Notes