Indecent exposure

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 parts of 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 on 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.

Breastfeeding in public does not constitute indecent exposure under the laws of the United States, Canada, Australia, or Scotland.[4] In the United States, the federal government and all 50 states[5] 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.[6]

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.[7] 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.[8][9][10] 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 is a common law offence in England and Wales[11] and Hong Kong. It is punishable by unlimited imprisonment and/or an unlimited fine.[11]

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.[12]

Modern case law has established two elements that must be satisfied for the offence to have been committed:[13][14]

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.[13][15]

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.[16] 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". 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.[17]

Other countries, such as the UK, Ireland or Poland,[18] are more conservative.

Left: In New York City, toplessness in public is allowed.[30] 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.[31] 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.

The phenomenon widely known as flashing, involving a woman exposing bare nipples by suddenly pulling up her shirt and bra, is public exposure and is therefore defined by statute in many states of the United States as prohibited criminal behavior.[32]

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]

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.

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.[43][44]
• New South Wales – Summary Offences Act 1988, section 5 – 'wilful and obscene exposure' – penalty six months.[45]
• Northern Territory – Summary Offences Act, section 50 – 'indecent exposure' – penalty 6 months.[46]
• South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively.[47]
• Queensland – Summary Offences Act 2005 No. 4, section 9 – 'wilful exposure' – penalty 12 months.[48]
• Tasmania – Police Offences Act 1935, section 21 – 'Prohibited behaviour' – penalty 12 months.[49] Police Offences Act 1935, section 14 – 'Public decency' – one penalty unit.[50]
• Victoria – Summary Offences Act 1966, section 19 – 'wilful and obscene exposure' – penalty two years.[51] Under the Nudity (Prescribed Areas) Act 1983[52] 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.[53]

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]

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]