Indecent exposure

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For the album by George Carlin, see Indecent Exposure (album).
"Indecent" redirects here. For the band, see The Indecent.
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. 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 prohibition of exposure of genital areas, buttocks and female breasts. In some conservative countries, especially in the Middle East, the exposure of any part of the female body is considered indecent. Not all countries have indecent exposure laws.[citation needed]

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 public nudity and does not require a 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 offence. In some countries, exposure of the body in breach of community standards of modesty is also considered to be public indecency.[citation needed]

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.[citation needed]

Overview[edit]

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 or Mursi where full nakedness is the norm.[citation needed]

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.[citation needed]

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.[citation needed]

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.[citation needed]

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.[citation needed]

Europe[edit]

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.

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 Kingdom[edit]

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. 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.[7][8] Public nudity can also be punished as "disorderly behaviour" under the Public Order Act 1986.[9]

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.[citation needed]

Under Scots law, public indecency is covered by Crimes of indecency.[citation needed]

United States[edit]

Canada[edit]

In Canada, s.173 of the Criminal Code[10] prohibits "indecent acts".[11] 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, so the decision of what state of undress are "indecent", and thereby unlawful, is left to judges. Judges have held, for example, that nude sunbathing is not indecent.[12] Also, streaking is similarly not regarded as indecent.[13][14] 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.[15]

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.[16] 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.[17] Since then it is legal for a female to walk topless in public anywhere in Ontario, Canada.[citation needed]

Australia[edit]

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')[18] 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:

  • 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.[19][20]
  • New South Wales – Summary Offences Act 1988, section 5 – 'wilful and obscene exposure' – penalty six months.[21]
  • Northern Territory – Summary Offences Act, section 50 – 'indecent exposure' – penalty 6 months.[22]
  • South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively.[23]
  • Queensland – Summary Offences Act 2005 No. 4, section 9 – 'wilful exposure' – penalty 12 months.[24]
  • Tasmania – Police Offences Act 1935, section 21 – 'Prohibited behaviour' – penalty 12 months.[25] Police Offences Act 1935, section 14 – 'Public decency' – one penalty unit.[26]
  • Victoria – Summary Offences Act 1966, section 19 – 'wilful and obscene exposure' – penalty two years.[27] 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.[28]

Definition of person[edit]

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)[29] where it was said that the word "person" was a genteel synonym for "penis" or "vagina". However, it has been held that the word "person" in s5 of the (NSW) Summary Offences Act is not limited to "penis" or "vagina". 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.[18][21]

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.[18]

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.[18]

India[edit]

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.[30]

See also[edit]

Notes[edit]

  1. ^ "Indecent exposure". Merriam-Webster's Collegiate Dictionary (Tenth ed.). Merriam-Webster. 2001. p. 589. ISBN 0-87779-713-7. 
  2. ^ "Criminal Code". Topical Index: State Statutes 2. Cornell University Law School. Retrieved 2010-09-14. 
  3. ^ "Breastfeeding etc. (Scotland) Act 2005.". Retrieved 2007-05-22. 
  4. ^ 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. 
  5. ^ "Addan. Associació per a la Defensa del Dret a la Nuesa. - Asociacion para la defensa del derecho al desnudo". Addan.com. Retrieved 2013-03-14. 
  6. ^ Nudity and the law
  7. ^ Legislation.gov.uk. "Sexual Offences Act 2003". Retrieved 2010-09-14. 
  8. ^ The National Archives (2010). Equality Act 2010. Retrieved on 2012-01-26 from http://www.legislation.gov.uk/ukpga/2010/15/contents.
  9. ^ http://ukhumanrightsblog.com/2013/10/31/freedom-of-expression-nakedness-in-a-public-place/
  10. ^ "Criminal Code of Canada, 1985, Part V, Sexual Offences". Efc.ca. Retrieved 2013-03-14. 
  11. ^ 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.
  12. ^ 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."
  13. ^ R v Springer, 1975, Saskatchewan District Court
  14. ^ R v Niman, 1974, Ontario Provincial Court
  15. ^ 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".
  16. ^ "Judgment C12668, R. vs. Jacob". Province of Ontario Court of Appeal. 1996-12-09. Retrieved 2009-02-16. 
  17. ^ District of Maple Ridge v. Meyer, 2000 BCSC 902 (CanLII). See esp. para [49] and [55].
  18. ^ a b c d Regina v Eyles Matter No 60305/97 (1997) NSWSC 452 (1 October 1997)
  19. ^ "Crimes Act 1900 - Sect 393". Australian Capital Territory Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  20. ^ "Nudity Act 1976". Australian Capital Territory Consolidated Acts. Australasian Legal Information Institute. Retrieved 2012-08-23. 
  21. ^ a b "Summary Offences Act 1988 - Sect 5". New South Wales Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  22. ^ "Summary Offences Act - Section 50". Northern Territory Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  23. ^ "Summary Offences Act 1953 - Section 23". South Australian Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  24. ^ "Summary Offences Act 2005 No. 4 - Section 9". Queensland Numbered Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  25. ^ "Police Offences Act 1935 - Section 21". Tasmanian Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  26. ^ "Police Offences Act 1935 - Section 14". Tasmanian Consolidated Acts. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  27. ^ "Summary Offences Act 1966 - Section 19". Victorian Consolidated Legislation. Australasian Legal Information Institute. Retrieved 23 August 2012. 
  28. ^ "WA Criminal Code Section 203". Australasian Legal Information Institute. Retrieved 23 August 2012. 
  29. ^ Evans v Ewels [1972] 1 WLR 671.
  30. ^ See Prostitution in India