Indecent exposure

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Streaking is a type of indecent exposure MIT streaker at HarvardYale game.jpg
Streaking is a type of indecent exposure

Indecent exposure is a legal expression to describe the deliberate public exposure by a person of a portion of their body where such exposure is contrary to local 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.

Contents

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.

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.

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 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. 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.

Symbolism

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. [4]

Breastfeeding

Breastfeeding in public does not constitute indecent exposure under the laws of the United States, Canada, Australia, or Scotland. [5] In the United States, the federal government and all 50 states [6] 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. [7]

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. [8] 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. [9] [10] [11] 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 [12] and Hong Kong. It is punishable by unlimited imprisonment and/or an unlimited fine. [12]

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. [13]

Modern case law has established two elements that must be satisfied for the offence to have been committed: [14] [15]

  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. [14] [16]

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. [17] 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".[ citation needed ] 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. [18] [ full citation needed ]

Other countries, such as the UK, Ireland or Poland, [19] 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 [20] 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. [21] 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. [22]

The maximum penalty is two years' imprisonment, very rare as most cases are dealt with by a fine or through community service. [22] [23] 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. [24]

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. [25] 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 [26] and the College of Policing [27] 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. [28] 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. [29]

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. [30]

United States

NYC Dyke March 2013 15.jpg
Woman with baseball cap and nipple pasties.jpg
Left: In New York City, toplessness in public is allowed. [31] 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. [32] 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.

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.[ citation needed ]

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

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

Related Research Articles

Upskirting is the practice of taking non-consensual photographs under a person's skirt or kilt, capturing an image of the crotch area, underwear, and sometimes genitalia. An upskirt is a photograph, video, or illustration which incorporates an image made by upskirting, although the term may also be used to refer to the area inside a skirt, usually from below and while being worn.

Modesty Mode of dress and deportment which intends to avoid encouraging of sexual attraction in others

Modesty, sometimes known as demureness, is a mode of dress and deportment which intends to avoid the encouraging of sexual attraction in others. The word "modesty" comes from the Latin word modestus which means "keeping within measure". Standards of modesty are culturally and context dependent and vary widely. In this use, it may be considered inappropriate or immodest to reveal certain parts of the body. In some societies, modesty may involve women covering their bodies completely and not talking to men who are not immediate family members; in others, a fairly revealing but one-piece bathing costume is considered modest while other women wear bikinis. In some countries, exposure of the body in breach of community standards of modesty is also considered to be public indecency, and public nudity is generally illegal in most of the world and regarded as indecent exposure. For example, Stephen Gough, a lone man attempting to walk naked from south to north in the United Kingdom, was repeatedly imprisoned. However, nudity is at times tolerated in some societies; for example by Digambara monks in India, who renounce clothing for ascetic reasons, and during a World Naked Bike Ride.

An intimate part, personal part or private part is a place on the human body which is customarily kept covered by clothing in public venues and conventional settings, as a matter of fashion and cultural norms. In several cultures, revealing these parts is seen as a religious offence.

Exhibitionism

Exhibitionism is the act of exposing in a public or semi-public context those parts of one's body that are not normally exposed – for example, the breasts, genitals or buttocks. The practice may arise from a desire or compulsion to expose themselves in such a manner to groups of friends or acquaintances, or to strangers for their amusement or sexual satisfaction or to shock the bystander. Exposing oneself only to an intimate partner is normally not regarded as exhibitionism. In law, the act of exhibitionism may be called indecent exposure, "exposing one's person", or other expressions.

Topfreedom

Topfreedom is a cultural and political movement seeking changes in laws to allow women to be topless in public places where men are permitted to be barechested, as a form of gender equality. Specifically, the movement seeks the repeal or overturning of laws which restrict a woman's right not to have her chest covered at all times in public.

Toplessness State in which the torso is exposed above the waist or hips

Toplessness refers to the state in which a woman's breasts, including her areola and nipples, are exposed, especially in a public place or in a visual medium. The male equivalent is barechestedness, also commonly called shirtlessness.

Gross indecency is a crime in some parts of the English-speaking world, originally used to criminalize sexual activity between men that fell short of sodomy, which required penetration. The term was first used in British law in a statute of the British Parliament in 1885 and was carried forward in other statutes throughout the British Empire. The offense was never actually defined in any of the statutes which used it, which left the scope of the offense to be defined by court decisions. The concept of gross indecency as a criminal offense is reflective of Victorian-era morality.

Nudity in film

Nudity in film is the presentation in a film of at least one person who is nude, partially nude or wearing less clothing than contemporary norms in some societies consider "modest". Since the development of the medium, inclusion in films of any form of sexuality has been controversial, and in the case of most nude scenes has had to be justified as being part of the story, in the concept of "artistically justifiable nudity". Many actors and actresses have appeared nude, or exposing parts of their bodies or dressed in ways considered provocative by contemporary standards at some point in their careers.

Clothing laws by country

Clothing laws vary considerably around the world. In general, in most countries, there are no laws which prescribe what clothing is required to be worn. However, the community standards of clothing are set indirectly by way of prosecution of those who wear something that is not socially approved. Those people who wear insufficient clothing can be prosecuted in many countries under various offences termed indecent exposure, public indecency or other descriptions. Generally, these offences do not themselves define what is and what is not acceptable clothing to constitute the offence, and leave it to a judge to determine in each case.

Indecent exposure in the United States

In the United States, indecent exposure refers to conduct undertaken in a non-private or publicly viewable location, which is deemed indecent in nature, such as nudity, masturbation or sexual intercourse. Such activity is often illegal. The legal definition in a given location may not specify all activities that would be covered.

Nudity and protest

Nudity is sometimes used as a tactic during a protest to attract media and public attention to a cause, and sometimes promotion of public nudity is itself the objective of a nude protest. The use of the tactic goes back to well published photos of nude protests by svobodniki in Canada in 1903. The tactic has been used by other groups later in the century, especially after the 1960s. Like public nudity in general, the cultural and legal acceptance of nudity as a tactic in protest also varies around the world. Some opponents of any public nudity claim that it is indecent, especially when it can be viewed by children; while others argue that it is a legitimate form of expression covered by the right to free speech.

Nudity State of wearing no clothing

Nudity is a state of being in which a human is not wearing clothing or specifically is not covering the genitals. In some societies, partial nudity is defined as not covering other parts of the body that are deemed to be sexual.

The Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) is an Act of the Parliament of the United Kingdom passed to consolidate certain enactments creating offences and relating to the criminal law of Scotland.

The legal status of striptease varies considerably among different countries and the various jurisdictions of the United States. Striptease is considered a form of public nudity and subject to changing legal and cultural attitudes on moral and decency grounds. Some countries do not have any restrictions on performances of striptease. In some countries, public nudity is outlawed directly, while in other countries it may be suppressed or regulated indirectly through devices such as restrictions on venues through planning laws, or licensing regulations, or liquor licensing and other restrictions.

Sexual Offences (Scotland) Act 2009 United Kingdom legislation

The Sexual Offences (Scotland) Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law. The corresponding legislation in England and Wales is the Sexual Offences Act 2003 and in Northern Ireland the Sexual Offences Order 2008.

Social nudity in Seattle

Social nudity is relatively common and accepted in Seattle when compared to other American cities, although perhaps similarly treated as in other large communities of the West Coast region, such as Los Angeles, the San Francisco Bay Area, and Portland, Oregon. There are a number of routinely held non-sexualized clothing-optional and topfree events. In synergy with the local enthusiasm for bicycling, the city is particularly known for its naked cyclists.

Topfreedom in Canada has largely been an attempt to combat the interpretation of indecency laws that considered a woman's breasts to be indecent, and therefore their exhibition in public an offence. In British Columbia, it is a historical issue dating back to the 1930s and the public protests against materialistic lifestyle held by the radical religious sect of the Freedomites, whose pacifist beliefs led to their exodus from Russia to Canada at the end of the 19th century. The Svobodniki became famous for their public nudity: mostly for their nude marches in public and the acts of arson committed also in the nude.

LGBT rights in Northern Nigeria

Lesbian, gay, bisexual, and transgender (LGBT) persons in Northern Nigeria face unique legal and social challenges not experienced by non-LGBT residents. Federal law prohibits all forms of Homosexual activities and prescribes up to 14 years imprisonment for those found culpable. While the Maliki form of Shari'a law applied in 12 states have lesser penalty for unmarried persons, It prescribes the death penalty for married individuals.

Naturism in New Zealand

Naturism refers to a lifestyle of practising non-sexual social nudity in private and in public, and to the cultural movement which advocates and defends that lifestyle. Both are also known as "nudism". Naturist organisations have existed in New Zealand since the 1930s. Although not a daily feature of public life, social nudity is practised in a variety of other contexts in New Zealand culture.

Topfreedom in the United States

In the United States, states have primary jurisdiction in matters of public morality. The topfreedom movement has claimed success in a few instances in persuading some state and federal courts to overturn some state laws on the basis of sex discrimination or equal protection, arguing that a woman should be free to expose her chest in any context in which a man can expose his. Other successful cases have been on the basis of freedom of expression in protest, or simply that exposure of breasts is not indecent.

References

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  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
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  44. Nudity Act 1976 (ACT).
  45. 1 2 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
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