Perception vs Law
I found this article from the AANR-NW e bulletin pretty interesting. It raised a few questions in my own mind about how perception can influence public opinion and legal issues related to nudism. The discussion of public perception has been brought up in other threads where it applies to certain clubs sponsoring swingers nights or things of that nature. After reading this article though I think the point is explained rather well and I would like to hear others opinions on the matter.
Erich Schuttauf, Executive Director 9/10s Of The Law.
You have probably witnessed something like this at a point in your lives: afriend or acquaintance finds something that didn't belong to them. Almost asif saying "finders keepers, losers weepers," they remark that "possession is9/10s of the law." While I can't say they taught me that in law school, my experience has ledme to believe that while possession may not be 9/10s of the law, when itcomes to nudity, PERCEPTION is. Why? Because everything from the neighborwho picks up the phone to call police because they saw a nude sunbather inthe yard next door through a hole in the fence, to those who complain aboutan established nude beach, or the photo developing clerk who reports"suspicious" pictures are driven by their perceptions about the lawfulnessof nudity. The same is true of the law enforcement officers and even prosecutors whorespond to complaints: they respond based upon their understanding andperceptions. whether or not those perceptions are accurate. I was remindedof this twice during the week as I answered requests for legal information. The first came in response to the story of the so-called "pumpkin runners"in Colorado who donned carved out pumpkins on their heads and went on a nuderun as a way of blowing off some steam. Their subsequent arrest and thefact that they could face serious penalties including being required toregister as sex offenders was the subject of an E-Bulletin story yesterday,prompting e-mails to my office. Is streaking really a serious sex offensethat could get you branded for life? The second question concerned visiting Internet sites featuring picturesfrom old nudist magazines. Are they legal if any of the pictures includeminors? In answering both questions I found myself explaining that what the law saysdepends on statutes and judicial interpretations, but in some cases isalmost beside the point. If those who witness a nude runner, or fix acomputer, think that what they've seen is a major violation of the law, andthe people who respond agree, then clearing things up may get veryexpensive and involve a stint behind bars. This provides yet another reason why AANR's work in shaping public opinionand educating others about the wholesome nature of simple nudity and themany ways which it is lawful remains so important. The support of our clubswho collect dues and contribute to The Bulletin, our members, and so manyothers who lend a hand make it possible to change mindsets.
Another thing that complicates the matter is variations in laws from state to state. I used to be a corrections officer for local sheriffs office. The three people that were brought in while I worked there did not have to register as sex offenders. Their arrest was not because of nudity but because of lewdness. One couple was having sex in public and the other was mastrerbating while driving down the road making sure women driving down the road would see.
Tonight on Fox news they talk about the naked bike ride in Oregon, they said later in the day one of the riders decided he wanted to continue riding nude and when stopped by police and told to dress he declined stated he was protesting, he was arrested only to have the charges dismissed by a judge saying protesting nudeon a bike was legal. I only hope when I get hiking nude I can get the same judge.
I tried to watch that, but it kept jumping, so I couldn't understand what they were saying. Can you give me the general idea of the story?
The long and short of it Lookn, is that a nudist group got too close to some kids having a birthday party. From the looks of it, it was a hot day, they decided to go into a fountain to cool off, but unfortunately it was close to children. The parents and at least one child were upset by this and it went from there. In the end, the nudists were cleared of any wrong doing and it was decided that the park needed better sinage to avoid any future problems.
Don't know about other countries but nudist don't have a chance in America, don't know how someone hiking in a forest nude and caught and arrested by law enforcement can be labeled a sex offender, the laws in the 50 states are really off balance well maybe Vermont would be a exception but government has surely intruded to much in our lives. Unless government and I will use Miami Florida as a example can make money on nudist ( haulover Beach) their preception is to make it illegal, there are even a few states where even a nudist resort is illegal, whats next illegal nudity in your home.
Thanks for the clarification on this one. I suppose that it's fitting that this is in the perception vs law thread because some would see it as if there is no law against public nudity then public nudity isn't against the law. You mention the laws governing indecent exposure which are about as open to interpretation as any other obscenity law where it comes to enforcement. I guess that's where we start walking that fine line between nude vs lewd and who gets to decide what constitutes lewd behavior. I had to watch the video again to refresh my memory on the story and as usual the media has made the facts about as clear as mud.
Unlike many state indecent exposure laws, Washington State's is pretty straightforward, to wit:
span style="font-style: italic;"RCW 9A.88.010
Indecent Exposure/span
span style="font-style: italic;"(1) A person is guilty of indecent exposure if he or she span style="font-weight: bold;"intentionally /spanmakes any span style="font-weight: bold;"open and obscene exposur/spane of his or her person or the person of another span style="font-weight: bold;"knowing /spanthat such conduct is span style="font-weight: bold;"likely to cause reasonable affront or alarm/span. The act of breastfeeding or expressing breast milk is not indecent expo/spansure. (emphasis mine)
There are four elements required for someone to be charged with indecent exposure:
1. That is was INTENTIONAL
2. That is was OPEN AND OBSCENE, and
3. That the individual KNEW it ...
4. Would likely cause REASONABLE AFFRONT OR ALARM
It's not enough that someone was alarmed, affronted or offended at seeing a naked person, even if it were intentional and the person knew it might alarm someone else . . . the law requires it to be an obscene and open exposure. Lacking the 'obscene' element a charge of indecent exposure is likely to be dismissed in Washingtin State.
The U.S. Supreme Court took on the meaning of obscenity and provided a definition for the states to use with the so-called Miller Test in 1973. The Miller Test requires, among other items that it "...span style="font-style: italic;"depicts or describes, in a patently offensive way, sexual conduct ..." /spanAs one justice wrote in another case, "... nudity alone is not enough to make material legally obscene under the Miller standards." 418 U.S. 152, 161 (1974)
In response to a question posited to Seattle Chief of Police, Gil Kerlikowske about the potential for arrests of naked bike riders at the 2008 Gay Pride Ride, the chief wrote, "Washington's indecent exposure law makes it a misdemeanor to make 'any open and obscene exposure of his or her person, or the person of another knowing that such conduct is likely to cause reasonable affront or alarm.' In other words, there must be lewd or obscene behavior for a police officer to take action..." He continues, "... Historically, it has been difficult in Seattle to prosecute cases of public nudity. The position of the police department is to take a report upon receiving a complaint, identify the individual involved, and forward the complaint to the City Attorney."(Letter to the attorney for the Gay Pride Parade, David Coffman, dated Jun 19, 2008)That is the action taken with the World Naked Bike riders. The City Attorney declined to take action.
Of course, individual police officers may have their own ideas of what indecent exposure means . . . or have other agendas. Arrest Without Warrant (RCW 10.31.100) gives a police officer wide lattitude to arrest someone to quickly get them off the streets and/or mollify complainers. The charges can be figured out later. This happened at a protest for a nude beach in Discovery Park a year earlier when police said they would be out in force and one nearby resident said he would be present specifically to 'be offended' by the expected nudity. It was slated to be a clothed protest but that escaped one participant who stripped and was promptly arrested by the police and carted off to the precinct. He was released several hours later without charges being pressed.
Nudity, under appropriate circumstances, seems to be becoming more tolerated in Seattle. The nude and painted nude cyclists of the annual Fremont Solstice Parade no longer suffers harrassment or arrests from the large police presence. The public loves it and Seattle is becoming much more tolerant.
I've attempted to write about the legal landscape on nudity within Washington State on my blog. While I'm not a lawyer and I'm no offering legal advice, I think it's a pretty good read here.
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