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. Indecent exposure laws vary in different countries. It ranges from including the genital areas, buttocks and female nipples. In some ultra-conservative jurisdictions the exposure of any part of the female body is considered indecent. Some countries do not have indecent exposure laws.
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 nudity in public and does not require any other 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 offense. 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 itself a complex topic.
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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.
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.
The standards of decency have varied 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 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. Today, however, it is quite common for women to go topless at public beaches throughout Europe and South America.
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.
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.
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.[4]
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.[5] In the Netherlands, public nudity is allowed at sites that have been assigned by the local authorities and "other suitable places."[6]
In Canada, s.173 of the Criminal Code[7] prohibits "indecent acts". There is no statutory definition in the Code of what constitutes an indecent act (other than that the exposure of the genitals for a sexual purpose to anyone under 14 years of age), so that the decision of what state of undress is "indecent", and thereby unlawful, is left to judges to decide. Judges have held, for example, that nude sunbathing is not indecent.[8] Also, streaking is similarly not regarded as indecent.[9][10] 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.[11]
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. [12] 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.[13] Since then, the court ruling has been tested and upheld several times.
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')[14] 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.
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)[15] 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.
However -
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.[16]
Under Scots law, public indecency is covered by Crimes of indecency.