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 by a person of a portion or portions of his or her own body under circumstances where such an exposure is likely to be seen as contrary to the local commonly accepted standards of decency, and may in fact be a violation of law. Indecent exposure refers to the act of being nude in public or partially nude. It does not require any other sexual act to be performed. In some countries, exposure of the body in breach of community standards of modesty is considered to be public indecency, a more serious criminal offence.

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, which require most of the body to be covered, to tribal societies such as the Pirahã where full nakedness is the norm (but even these tend to consider exposure of an erect penis, a glans penis not covered by foreskin, or opened female genitalia as a severe breach of decency).

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 that beach it may not be expected to witness explicit sexual activity. Indecent exposure is normally understood to be exposure of an adult's genitalia, but it may also involve masturbation, sexual intercourse, and the like in a public place.

The standards of decency may also vary 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 largely prevented from bathing or swimming in public places without wearing bathing suits that covered above the waist. An adult woman exposing her navel was also considered indecent in the West up through as late as the 1960s and 1970s. Today, however, it is quite common for women to go topless at public beaches throughout Europe and South America. ‎

What qualifies as indecent exposure varies with the authority having jurisdiction. Indecent exposure is often prohibited as a criminal offense.

Although the phenomenon widely known as flashing, involving a woman showing bare breasts 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.

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. 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.

Legal status in 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.

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. In the Netherlands, public nudity is allowed at sites that have been assigned by the local authorities and "other suitable places", which effectively means that any complaint will cause one to be arrested under the reasoning that the complaint itself is an indication that the place is not "suitable".

Legal status in the United States

History

Man and woman in swimsuits, ca. 1910; she is exiting a bathing machine

Annette Kellerman, early 1900s

In the United States of America in the early 1900s, women were expected to wear cumbersome dress and pantaloon combinations when swimming. In 1907, Annette Kellerman, an Australian swimmer, was arrested on a Boston beach for public indecency wearing her trademark one-piece swimsuit. After a public outcry at the arrest, the style had become generally acceptable by the 1910s.

Laws

Indecent exposure (which is also known by other terms, such as "sexual misconduct", "public lewdness", or "public indecency") is prohibited in all states. It is a criminal offense punishable by fines and/or imprisonment, and in some states a conviction results in having to register as a sex offender. However, the definition of what constitutes indecent exposure varies, and some states permit local governments to set local standards. In all states exposure of genitals in a public place is caught, and in some states and places exposure of female breasts is also caught, although prosecutions are rare. Some states, if they do prosecute toplessness, may require evidence of intent to offend others. Public place is any place where the conduct may reasonably be expected to be viewed by others.

Links to state criminal codes may be found at the Cornell Law School Index.

Indecent exposure is also defined as a crime by the U.S. Uniform Code of Military Justice Sec. 552. regarding rape, sexual assault, and other sexual misconduct.

Exemption for breastfeeding of infants

Most states exempt breastfeeding mothers from prosecution under these statutes.

U.S. Public Law 106-58 Sec. 647. enacted in 1999, specifically provides that "a woman may breastfeed her child at any location in a Federal building or on Federal property, if the woman and her child are otherwise authorized to be present at the location."

The application of state and federal statutes may be modified by judicial precedent.

Legal status in 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' ) 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.

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 - Criminal Code - Section 203 - 'Indecent acts in public' - criminal penalty two years. Summary conviction penalty: 9 months

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) 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))

See also

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