Is public nudity a criminal offence?

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How “undressed” are you in a public or relatively private space? Is it only up to you, or do you consider those around you?

Well, the New South Wales legislation has strong views on exposing certain areas of your bodies, especially close to a school or a children's area.

On March 13 of 2020, the Police arrested and charged a 49-year-old man on a train. He was alleged to have stalked and exposed part of his body to a 20-year old woman.s

The court can also treat some cases of public nudity or obscene dressing as “lesser” sexual offences.

What is the offence of Public nudity?

The Summary Offences Act of 1988 (NSW) states that a person shall not in view of a public place, school or other sensitive areas, willfully or obscenely expose their body or person. All related cases to this are treated as Public nudity irrespective of the person or degree.

In the court, the prosecution must prove before the jury that the offender has intentionally exposed themselves in an obscene way within sight of a school or a public place.

The acts that can lead to a public nudity offence include;

✔ Exposure of torso and top body area

✔ Wears with obscene remarks or images

✔ Transparent clothing and see-through

✔ Very light dressing

✔ Obscene actions in a public place

✔ Total body nudity

What is a willful exposure?

In proving that an offender was obscene in a public area, the prosecution must show that the act was willful and intentional. It must show that the offender had no reason to be obscene in such areas, and would not have acted differently given the circumstances.

What constitutes obscene acts or public nudity?

Whether an act is obscene or not is not put rigidly in the law, as it can be subject to change and advancements in our world. For example, exposure of areas of the buttocks, or breast may not count as an obscene act depending on the condition surrounding it, like a mother breastfeeding.

However, the courts hold that exposure of the penis/testicles and part of the female genitalia qualify as obscene exposures.

What is a Public space?

Section 3 of the Act describes a public space as an area or premises open for public use. Whether the space is "open" by the public or not is of little concern. The place can also be partially opened and even limited to a class of persons but still qualify as a public space.

Furthermore, public areas can be places covered by water, like a beach, aboard a ferry.

Public nudity on designated beaches will not attract a charge, provided that the council's regulation is adhered to.

Section 633(6) of the Local Government Amendment (Nude bathing) Act 1996 (NSW) Act lists five beaches dedicated for bathing.

• Lady Bay Beach
• Cobblers Beach
• Obelisk Beach
• Werrong Beach
• Samurai Beach

While people may sunbathe and swim nude, these are not official sites, and the act is up to the discretion of the Police.

Nude bathing in any other areas outside of the designated beaches or spaces can lead to fines of up to $1,100.

What is a Case for Public nudity?

There may even be no witness when the offender was "publicly nude". The court can find you guilty of the act if the prosecution can prove that such exposed body area would or could have been seen by a person in a public space. The defendant need not have been in the place where the act occurred.

It is reinforced by the NSW Supreme Court case of R v Eyles [1977] NSWSC 452. The man was charged for obscene self acts behind a fence on his property. Although there was no evidence that any other person saw his penis, the prosecution established that anyone in the public space could have seen it considering he was naked from the waist up.

Are there penalties for Public Nudity?

Most offenders on public nudity have been punished, especially where such offences are committed close to children. The maximum sentencing term for a public nudity offence is a 6-month imprisonment term with or without a fine. However, the court may increase the penalty depending on;

✔ The seriousness of the offence

✔ Nature of the offence

✔ Where the offence is committed

✔ Circumstances of aggravation; witnessed by a child

However, the court may commute these penalties depending on their nationally coordinated criminal history checks and the following factors to a

• Good behaviour bond
• Community service
• Section 10 dismissal
• Fines

Are public nudity offences the same as sexual offences?

Technically, a public nudity offence is not the same as a sexually related crime. However, the prosecution must assert that the individual exposed part of their genitalia in public, including exhibitionism.

A public nudity offence does not necessarily mean that there should be a sexual act.

However, if the court pronounces the offence to be a sexually related crime, the penalties can rise to 10 years in imprisonment, depending on the seriousness of the offence.

What line of defence can defendants take?

If you are charged with a public nudity act, there are several lines of defence your legal team can make.

✔ Case of acting out of Duress

You can argue and prove before the court that you acted so out of duress, or threat to your life. An example could be that you were being pursued by a fearsome or dangerous person or animal and lose the clothes.

✔ Case of necessity

If your reason for such an act was to prevent an even worse event, you could argue such acts were out of necessity. Your lawyers can make a case that your actions were to forestall a bigger danger, like loss of lives (lose the clothes during an emergency), and so on.

✔ Wardrobe malfunction

Just with any bad day, our clothes may decide to go off. People may not realize early the impact of the wardrobe malfunction.

Offenders can equally enter a guilty plea for a reduced or commuted punishment. And dispute the facts (in special "disputed facts" hearings). You can also argue that the charges are disproportionate or irrelevant to the offence

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