Indecent exposure

This article is about the threatening behavior; see also Public indecency. "Indecent exposure" is typically not to be confused with Exhibitionism.

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. Indecent exposure laws vary in different countries. It ranges from including the genital areas, buttocks and female nipples. In some ultra-conservative jurisdictions the exposure of any part of the female body is considered indecent. Some countries do not have indecent exposure laws.

The applicable standard of decency is generally that of the local community, which is sometimes codified in law, but may also be based in religion, morality, or, in some justifications, on the basis of "necessary to public order."^[1] Indecent exposure sometimes refers to exhibitionism or to nudity in public and does not require any other sexual act to be performed. If sexual acts are performed, with or without an element of nudity, this can be considered public indecency, which may be a more serious criminal offense. 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

What constitutes indecent exposure depends on the standards of decency of the community where the exposure takes place. These standards 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 where full nakedness is the norm.

Even within a community, what will be seen as indecent will also depend on the context in which the exposure takes place. For example, it would be a reasonable expectation to see a naked person on a designated nude beach. However, even on a nude beach it may not be expected to witness explicit sexual activity.

The standards of decency have varied over time. During the Victorian era, for example, exposure of a woman's legs was considered indecent in much of the Western world. As late as the 1930s, 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. Today, however, it is quite common for women to go topless at public beaches throughout Europe and South America.

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 England and Wales the offence of "indecent exposure" and other sexual offences were replaced by the more specific and explicit Sexual Offences Act 2003. The Act does not mention nudity as such and is worded so as not to apply to skinny dipping, nude sunbathing, and similar activities. It applies only to aggressive genital exposure with intent to shock those who want not to see the genitals. The maximum penalty is two years' imprisonment.^[4]

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. In Scotland, a Bill with more repressive wording is currently proposed [mid 2008].

In Barcelona, public nudity is a recognised right. Working with the associations Addan (which defends the right to nudity) and Aleteia, the Barcelona Council published the "Tríptic de Barcelona", which codifies the right.^[5] In the Netherlands, public nudity is allowed at sites that have been assigned by the local authorities and "other suitable places."^[6]

United States

See Indecent exposure in the United States.

Canada

In Canada, s.173 of the Criminal Code^[7] prohibits "indecent acts". There is no statutory definition in the Code of what constitutes an indecent act (other than that the exposure of the genitals for a sexual purpose to anyone under 14 years of age), so that the decision of what state of undress is "indecent", and thereby unlawful, is left to judges to decide. Judges have held, for example, that nude sunbathing is not indecent.^[8] Also, streaking is similarly not regarded as indecent.^[9][10] 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.^[11]

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. ^[12] 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.^[13] Since then, the court ruling has been tested and upheld several times.

Australia

In Australia, it is a summary or criminal offence prohibited by laws of some States and Territories to expose one's genitals (also referred to as - 'his or her person')^[14] in a public place or in view of a public place. In other States and Territories the 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.

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

Penalties for the various offences vary between jurisdictions and are summarised below.

For specific state Acts see

• Australian Capital Territory - Crimes Act 1900 - Section 393 - 'indecent exposure' - penalty 12 months. The "Minister" may declare a public area where public nudity is permitted. See: Nudity Act 1976 An Act to permit nudity in certain public places.
• New South Wales - Summary Offences Act 1988 - Section 5 - 'wilful and obscene exposure' - penalty six months
• Northern Territory - Summary Offences Act - Section 50 - 'indecent exposure' - penalty 6 months
• South Australia - Summary Offences Act 1953 - Section 23 - 'Indecent behaviour and gross indecency' - penalty three months and six months respectively
• Queensland - Summary Offences Act 2005 No. 4 - Section 9 - 'wilful exposure' - penalty 12 months
• Tasmania - Police Offences Act 1935 - Section 21 - 'Prohibited behaviour' - penalty 12 months. Police Offences Act 1935 - Section 14 - 'Public decency' - one penalty unit.
• Victoria - Summary Offences Act 1966 - Section 19 - 'wilful and obscene exposure' - penalty two years
• Western Australia - WA Criminal Code Section 203 - 'Indecent acts in public' - criminal penalty two years. Summary conviction penalty: 9 months and fine of $9,000.

Definition of person:

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)^[15] where it was said that the word "person" was a genteel synonym for "penis". However, the word "person" in s5 of the (NSW) Summary Offences Act is not limited to "penis". The section applies equally to females as well as males. This term is used in New South Wales, the Australian Capital Territory and the Northern Territory. In the other States the exposure refers to one's genital area. In a sense, therefore, the term "person" can be wider than "genitalia". In Regina 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 Summary Offences Act 1988 - Section 5.

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.

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. (per Regina v Eyles NSWSC 452 (1 October 1997))

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.^[16]

Scotland

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

See also

• Anasyrma
• Exhibitionism
• Obscenity
• Public indecency
• Sex crime
• Social nudity
  • Nudity and children
  • Public nudity
  • Streaking
• Topless

Notes

1. ^ Merriam-Webster's Collegiate Dictionary, Tenth Edition (Merriam-Webster Inc., 2001), "indecent exposure" p. 589
2. ^ "Criminal Code". Topical Index: State Statutes 2. Cornell University Law School. http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code. Retrieved 14 September 2010. 
3. ^ "Breastfeeding etc. (Scotland) Act 2005.". http://www.opsi.gov.uk/legislation/scotland/acts2005/20050001.htm. Retrieved 2007-05-22. 
4. ^ Legislation.gov.uk. "Sexual Offences Act 2003". http://www.opsi.gov.uk/acts/acts2003/ukpga_20030042_en_5#pt1-pb18-l1g66. Retrieved 14 September 2010. 
5. ^ Addan. Associació per a la Defensa del Dret a la Nuesa. - Asociacion para la defensa del derecho al desnudo
6. ^ Nudity and the law
7. ^ Criminal Code of Canada, 1985, Part V, Sexual Offences
8. ^ R. v. Beaupré, 1971, British Columbia Supreme Court. Held: "mere nude sunbathing is not of sufficient moral turpitude to support a charge for doing an indecent act."
9. ^ R v Springer, 1975, Saskatchewan District Court
10. ^ R v Niman, 1974, Ontario Provincial Court
11. ^ R v Benolkin, 1977, Saskatchewan Court of the Queen's Bench. It was found that "this offence is not aimed at conduct such as swimming nude at an isolated beach, even where the accused misjudges the loneliness of the beach".
12. ^ Judgment C12668, R. vs. Jacob. Province of Ontario Court of Appeal. 1996-12-09. http://www.canlii.org/en/on/onca/doc/1996/1996canlii1119/1996canlii1119.html. Retrieved 2009-02-16 
13. ^ District of Maple Ridge v. Meyer, 2000 BCSC 902 (CanLII). See esp. para [49] and [55].
14. ^ Regina v Eyles Matter No 60305/97 (1997) NSWSC 452 (1 October 1997)
15. ^ Evans v Ewels [1972] 1 WLR 671.
16. ^ See Prostitution in India