The final wording, which includes the qualification of intention:
66 Exposure
(1) A person commits an offence if-
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
Some quotes from the committee stages in the House of Lords:
Baroness Walmsley (Liberal Democrat)
My concern in this part of the Bill has always been to protect naturists going about their perfectly harmless business and to prevent their falling foul of over-zealous police officers and magistrates. In that respect I greatly welcome government Amendments Nos. 343A and 348A. My amendment should also protect naturists from mischievous members of the public who might seek to use Clause 70 as a defence against accusations of voyeurism.
I do not practise naturism but I can certainly imagine its attractions. The human body is nothing to be ashamed of, and we must ensure that we are not over-prescriptive in what we allow people to do, either in private or in the company of other consenting, like-minded people. Exposing our skin to the sun and air is something we all like to do to a greater or lesser extent, especially when the sun shines and we are on a beach. It is estimated that there are about 1 million naturists in Britain. They enjoy swimming, walking, sports and gardening while returning to the way they were born, unencumbered by clothing. In other parts of Europe there are many millions more.
There has been considerable concern among the naturist community about Clause 70. I am delighted that the Government have responded to it. Unless the Bill is amended, naturists run the risk of having their names added to the sex offenders' register and facing up to a two-year sentence. As one of them put it in a letter to me:
"There needs to be a clear distinction between those who enjoy nude recreation, which is harmless, and that which is unsuitable in any public place, even a beach on a hot day".
Lord Lucas (Conservative)
We are here trying to deal with flashers - disgusting characters they are; I have come across them on too many occasions. We are not trying to deal with someone who for some other reason exposes his genitals. I would especially cite in this context the streaker. I do not want someone who streaks at a Lord's cricket match stuffed on the sex offenders' register. That is not a sexual offence; it may be due to a bit of alcohol and exuberance; but it has nothing whatever to do with intentionally offending the public.
If the Government do not want to pursue that route, there are other points that I wish to make and that are made by my amendments. First, I do not see that the law has or should have any part to play in what happens in a person's private dwelling house, so I would like the words, "in a public place", inserted. Secondly, we should require that someone knows and intends that someone should be caused alarm and distress. There must be a guilty mind, an intention to cause distress. Just because your maiden aunt, whom you know shrieks at the sight of a naked ankle, happens to see you and you know that she happens to be around should not stop you sunbathing in the nude in your own garden if that is what you want to do. My third amendment does a bit of what the Government are doing, but more largely and successfully. I am delighted that they are doing it, but they have not gone far enough.
Baroness Blatch (Conservative)
Then there are the naturists. On 8th April, the chairman of the Central Council for British Naturism gave evidence to the Home Affairs Committee about Clause 70. He complained that, to some, naturism is,
"a very moral and proper way of life".
He even went so far as to call it "a family activity". He said that he did not want naturists criminalised by the new offence and called for an amendment similar to the ones being proposed here.
When Mr Hilary Benn gave evidence to the same committee on 29th April, he said that Clause 70,
"is not in any way intending to criminalise naturists".
It is clear that these amendments are designed to give effect to that reassurance. But does he really mean that he does not wish "in any way" to criminalise naturists; that is, not in any circumstances? What if scores of them invade a public beach? What about those who cause the National Trust endless difficulties because they insist on exposing themselves on public land? Are the Government creating a kind of "nudists' charter"?
and
The fact is that most victims of this kind of exposure will not care about the motive. If a mother with young children is confronted in a shopping arcade by a naked man, causing confusion, distress and fear to her children, she will not care whether his motive was sexual. She will simply want to be able to tell her children that the police have arrested the man and that he will be punished for it.
She seems to see no distinction between flashing at someone and just being naked. Is any normal child terrified of seeing a naked but unthreatening person?
Sections 67 and 68 of the Act may also be of interest:
67 Voyeurism
(1) A person commits an offence if
(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
(b) he knows that the other person does not consent to being observed for his sexual gratification.(2) A person commits an offence if
(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
(b) he knows that B does not consent to his operating equipment with that intention.(3) A person commits an offence if
(a) he records another person (B) doing a private act,
(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
(c) he knows that B does not consent to his recording the act with that intention.(4) A person commits an offence if he instals equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1).
(5) A person guilty of an offence under this section is liable
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.68 Voyeurism: interpretation
(1) For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and
(a) the persons genitals, buttocks or breasts are exposed or covered only with underwear,
(b) the person is using a lavatory, or
(c) the person is doing a sexual act that is not of a kind ordinarily done in public.(2) In section 67, structure includes a tent, vehicle or vessel or other temporary or movable structure.
This is the one ("POA s5") typically used against naturists where there is no accusation of sexual behaviour. The other sections of this Act refer to violent behaviour of one sort or another; section 5 requires only "disorderly" behaviour.
Part I
Section 5
Harassment, alarm or distress.
(1) A person is guilty of an offence if he -
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
(3) It is a defence for the accused to prove -
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.
The following 2 sections were repealed by the Serious Organised Crime and Police Act 2005 (c15) and presumably replaced by something else:
(4) A constable may arrest a person without warrant if -
(a) he engages in offensive conduct which a constable warns him to stop, and
(b) he engages in further offensive conduct immediately or shortly after the warning.(5) In subsection (4) "offensive conduct" means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature.
(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Section 6 has some clauses that refer back to section 5:
Section 6.
Mental element: miscellaneous.
(1) A person is guilty of riot only if he intends to use violence or is aware that his conduct may be violent.
(2) A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.
(3) A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting.
(4) A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.
(5) For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment.
(6) In subsection (5) "intoxication" means any intoxication, whether caused by drink, drugs or other means, or by a combination of means.
(7) Subsections (1) and (2) do not affect the determination for the purposes of riot or violent disorder of the number of persons who use or threaten violence.
"There is also a common law offence of outraging public decency, which makes it an offence to do in public any act of a lewd, obscene or disgusting nature which outrages public decency." Quoted from government response to nudity e-petition, 2008 Jan. Ought not to be applicable to naturism.
Apparently an example of a prosecution for clearly non-sexual nudity in a private garden. Few facts and the accused won't speak about it. Bound over for 1y. On the stated facts no offence was committed.
Another story in which a police action for being naked in a garden is actually a complicated story about feuding between neighbours.
A man gets on the sex offenders register for opening his front door naked. This was a deliberate act intended to offend trick-or-treat children, so could hardly be justified as innocent even if it was not explicity sexual. Nevertheless, "The chair of bench has said that [his] behaviour ... could have caused the girls significant harm", but how?
Story in Lancashire Evening Post
The paper presents this as a man, in his own house, being seen nude by a neighbour, which should should not have been a sexual offence. He got a conditional discharge for two years and had to pay compensation and costs.
There must have been more than just being glimpsed naked to justifiy this sentence. It's a pity the paper could not make this clear, instead of spreading false impressions of the law. The headline is especially misleading.
©2007 nib -
2007-10-18 -> 2008-01-26