Nudity in the News

Annie's Mailbox: Hot-tubbing at home not public nudity [1]

By Kathy Mitchell & Marcy Sugar
For The Norwich Bulletin

Posted May 18, 2009 @ 11:04 PM


DEAR ANNIE: I am 23 years old and a virgin. I have never seen a naked man in my life because I believe virginity should be kept until marriage. The other day, I went with my sister to watch my nephew’s baseball game. He plays on a field that is uphill, so you can see the backyards of some of the houses across the street. My nephew had heard from his friends that one of the men in those yards sits naked in his hot tub. I always assumed this wasn’t true.

When I got to the game, I instantly remembered those rumors. I didn’t intend to be a Peeping Tom, but I looked around and saw a man in a hot tub. I assumed this was the guy, so I kept watching. Five minutes later, he got out of the hot tub and really was naked. I instantly got a headache and my eyes burned. I want to do something to prevent children from seeing him. I know he was in his own backyard, but you could see him clearly from the field. Would that count as public nudity? Do you think I should report him?

SCARRED FOR LIFE

DEAR SCARRED: We’re sure glad you didn’t go blind. For someone claiming not to be a Peeping Tom, you certainly expended a lot of energy trying to catch a glimpse of this naked man. If he is hot-tubbing on his own property and taking appropriate precautions to be discreet, it is not public nudity. Unless, of course, he does the hot-tub routine only during games, in which case there is some exhibitionism going on. If you think this is traumatizing the Little Leaguers, you can mention it to one of the parents.

[1] Mitchell, Kathy & Sugar, Marcy. Annie’s Mailbox: Hot-tubbing at home not public nudity. The Norwich Bulletin, May 18, 2009 (accessed May 20, 2009). http://www.norwichbulletin.com/lifestyles/x342404240/Annies-Mailbox-Hot-tubbing-at-home-not-public-nudity

The re-printed article above is the latest example of nudist related news I came across from crawling non-nudist news sites. The original writer to this “Dear Abby” type column goes far beyond being ridiculous and yet I found the article another sterling example of the equally ridiculous perspectives of non-nudists when it comes to the nude human body.

First, since she thought it necessary to inform everyone that she was “a virgin” who “[had] never seen a naked man…because [she] believes virginity should be kept until marriage” it is evident that this person clearly associates nudity with sex, a most common misconception among Textiles. Second, she goes out of her way to become a common voyeur and spy on a man who within the privacy of his own backyard, enjoys a refreshing dip in his hot tub sans clothing and then has the unmitigated gall to complain that she was so offended that she signed herself “Scarred for Life.” She attempts to justify her “Peeping Tom” behavior by rationalizing that she was only concerned about the welfare of children who might be exposed to seeing a naked man which was nothing short of hypocritical. I did enjoy the dramatic flair she exhibited by stating that after she observed the naked man whose privacy she was brazenly violating, “I instantly got a headache and my eyes burned.” There is no way of knowing of course whether the man involved was an actual nudist or just one of likely millions of Americans who finds hot tubbing most meaningful when enjoyed in the nude. My girlfriend, who does not at all have an attraction for naturism per se, does enjoy both nude hot-tubbing and skinny-dipping on occasion when we have the opportunity. But the article does bring to light many issues related to nudity.

First, why should nudists and others who like to be nude on their own property, in the privacy of their own backyard and who have taken the reasonable precaution to avoid offending the prudish community by erecting a reasonable privacy fence, have to fear repercussions resulting from complaints by the likes of Miss Virginal Prude? I think this lady needs grow up, don her big girl panties and accept the fact that every male on the planet has a penis and every female has a vagina and breasts and both have butts, and then she needs to get over it. The simple fact that she happened to be occupying an elevated site that permitted her to be able to violate someone’s privacy by looking over their fence into their backyard does not all serve to condone the fact that she took advantage of the circumstances to do so and then became “offended.” After a span roughly 5,000 years of recorded human civilization, it is mind boggling to me that the majority of humans are so plagued by an unhealthy view of their own nudity and that of others. Doesn’t it make you wonder how we ever progressed as far as we have? In some respects I find myself wondering whether as a society we are becoming more civilized or less so.

I did for the most part find myself in agreement with “Annie’s” reply. She not only flatly informed the writer that what she described was not public nudity but also called her out on the fact that she was the person in the wrong by engaging in voyeuristic behavior and then crying foul! I also enjoyed the little jab, “We’re sure glad you didn’t go blind.” The only disagreement I found with the article was the final “Unless, of course, he does the hot-tub routine only during games, in which case there is some exhibitionism going on. If you think this is traumatizing the Little Leaguers, you can mention it to one of the parents.” While I agree if someone was exposing their nakedness for exhibitionist purposes, they cross that invisible line between mere nudity and lewdness but of course someone like the writer who has already revealed their agenda would of course skip over the “if” and go directly to the “then" "mention it to the parents” part.

Personally, I think erecting a privacy fence around one’s backyard is all the reasonable precaution a person should be expected to take with regard to taking appropriate action to preclude offending someone who finds nudity offensive. Once they have done that, if others choose to build an elevated baseball field or a two story home for that matter that provides people the facility for peering over a privacy fence and observing what is going on in someone else’s backyard, then they cannot then claim to be offended if they happen to observe someone sunbathing or hot-tubbing in the nude. This madness has to stop!

Ellen Makkai: Self-Styled Interpreter of the Constitution - Conclusion

Picking up where I left of on Friday, here is how I see the key elements of Texas v. Johnson applying to public nudity and why I firmly believe as does the Naturist Action Committee, the ACLU and many others, that public nuidty is a First Amendment issue;

• Protected speech does not end at the spoken or written word but includes conduct which may be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. Conduct sufficiently imbued with elements of communication fall within the scope of the First and Fourteenth Amendments.
  
  
• Though not specifically spelled out in the decision, I think it clearly states by inference that just because a particular conduct might be “offensive” even “extremely offensive” and might be offensive to many, even the majority, does not give power to the state to regulate or criminalize such conduct on the basis of that alone.
  
  
• By inference, if the burning of the American flag does not meet the test of Brandenburg v. Ohio, used by the court in reaching its decision in this case, that the state may only punish speech that would incite “imminent lawless action.” Clearly mere nudity in the same way would not also pose any “imminent threat of lawless action.”
  
  
• In the same way that the American flag has no “uniqueness” by way of special protections enumerated in the constitution that would give rise to it being considered a special “exception” to the rights guaranteed under the First Amendment and therefore giving rise to a compelling interest on the part of the state to preserve it by making it unlawful to burn the flag, in the same way neither is there any evidence that the framers of the constitution intended that public nudity be a special exception providing any compelling legal interest on the part of the state to suspend the rights afforded under the First Amendment by prohibiting or making the practice of it unlawful.
  
  
• Just as the court found that Texas already had a statute that prohibited breaches of the peace and could be used to prevent disturbances without punishing flag desecration, Texas as well as most of the other 49 states have laws that prohibit and can be used to prevent lewd conduct without punishing mere nudity. Both the United States Supreme Court as well as the supreme courts of various states has held on numerous occasions that mere nudity, in itself, is not obscene or lewd. Important legal precedents have been established for how the courts are to interpret lewdness or indecency. In Re Smith, 7 Cal.3d 362 (1972) for instance, the Supreme Court of the State of California ruled that "mere nudity in California does not constitute indecent exposure in violation of state statutes, absent additional conduct intentionally directing attention to the genitals for sexual purposes." The court specifically used “masturbation” as an example of the kind of conduct they were speaking of. Clearly a person simply sun-bathing in the nude on a public beach does not “lewdly” expose his private parts within the meaning of the applicable statute.
  
  
• In its decision, the Supreme Court reaffirmed the precedent from United States v. O'Brien, 391 U.S. 367 (1968) that state regulation of speech-related conduct is permissible only; (1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression and; (4) if the incidental restrictions on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Under the sovereignty theory (except for those powers expressly and specifically granted to the federal government under the Constitution, states retain all other powers to among other things protect the order and morality of it citizens), statutes and ordinances that prohibit or seriously restrict nudity are common in nearly all fifty states. Since the states retain all such powers and because nudity is not an expressly guaranteed constitutional right and because the states have the power even to limit guaranteed rights as long as they articulate how such limits serve an important public interest, courts have routinely found that the public’s interest in morality trumps any implied right to express one’s views by not wearing clothes. However, in light of Texas v. Johnson, this seems to be a patently faulty line of legal reasoning. The test quite commonly applied to the reasonableness of the state limiting constitutionally guaranteed rights is there must be some compelling need to do so in the interest of public safety, public health or maintenance of order. I think it is most difficult on the part of legislators to ascribe a “harm” that mere nudity might cause any person, even a person who finds nudity offensive, to justify regulating and criminalizing such conduct. And as stated in Texas v. Johnson, when laws already exist that prohibit and can be used to prevent breaches of the peace, there is no constitutionally recognized powers on the part of the state to single out such conduct as mere nudity to prohibit and punish.

My home state, Texas has three laws specifically calculated to restrict and prohibit public nudity;

PC 21.07. PUBLIC LEWDNESS. (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;
(2) act of deviate sexual intercourse;
(3) act of sexual contact; or
(4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.
(b) An offense under this section is a Class A misdemeanor.

PC 21.08. INDECENT EXPOSURE. (a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act. (b) An offense under this section is a Class B misdemeanor.

PC 42.01. DISORDERLY CONDUCT.

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in an obviously offensive manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(9) discharges a firearm on or across a public road;
(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
(11) for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;
(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person's own through a window or other opening in the room; or
(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.
(c) For purposes of this section: (1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and (2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance. (d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

With respect to the statute on public lewdness, I have no problem at all with it as I think the conduct described in the statute should be prohibited and punished. I also think it is likely the only statute needed for regulation and prohibition of nudity. The indecent exposure statute I consider patently unconstitutional on the grounds that the conduct it seeks to prohibit is already addressed by other existing statutes that prohibit and punish truly offensive behavior. This statute should in my opinion be repealed. With respect to the disorderly conduct statute, admittedly it is a legitimate police power and duty of the state to keep the peace and while I think taken alone PC 42.01(a)(10) shares with PC 21.08 a similar constitutional fatal error; taken together PC 42.01(a)(10) and (a)(11) I think would pass constitutional muster if combined and the verbiage “and is reckless about whether another may be present who will be offended or alarmed by his act; or,” removed from (a)(10). As mentioned I have no difficulty whatsoever with the restriction and prohibition of public lewdness as long as “lewdness” is defined as something having to do with sexual arousal, excitement, titillation or gratification. I think it interesting that no where in the Texas Penal Code, fraught with definitions, does one find a definition for the term “lewd” or any of its variations. By intent perhaps?

So there you have it Ms. Makkai. Hopefully we have been able to enlighten you a bit on the subject of some very important safeguards that you and the rest of Americans share as a beneficary of our consitutional guarantees that you were obviously unaware of. So please observe that the practice of public nudity is and has always been something of a "civil right" for us "nudies". It isn't anything new at all despite what you may have believed. I swear at times that our founding fathers must have had access to some means of peering into the distant future and accounting for almost every inevitability. Truly the United States Consitution is a remarkably insightful document.

Social Nudity: What it is and isn’t

Social nudity refers to nudity in a communal setting. Nudity or nakedness generally is the state of wearing no clothing but the term nudity is sometimes used to refer to wearing significantly less clothing than expected by the conventions of a particular culture or situation and in particular exposing the bare skin in not an entirely private context. Social nudity may or may not involve public nudity which refers to a person appearing nude in a public place or to be seen from a public place. Nudity in the privacy of a person’s home or private property is not public nudity. Nudity at nudist or naturist clubs or resorts is social nudity but also not public, since it also takes place on private grounds. Naturism promotes social nudity, but mostly on private properties or officially sanctioned public areas. Social nudity may be sexualized or non-sexualized nudity. In the practice of conventional nudism/naturism, nudity is non-sexualized and presented as wholesome, nurturing and even family oriented. There is however a fringe element within the nudism movement where social nudity is highly sexualized. At nudist gatherings of these groups sex is a prominent part and may include the sharing of sexual partners, having multiple sexual partners and/or engaging in sex while in the company of or while being watched by others. Participants are commonly termed “swingers”. While considered “unconventional” this behavior still falls within the concept of social nudity.

In some circumstances, public nudity may be legal. For example, in Europe, Canada, Australia, the U. S. and other countries there exist public areas designated as nude beaches. A nude beach is a beach where the users generally are nude. There are however also clothing optional (CO) beaches where persons are permitted to be completely nude but it isn’t required. In such places a person would not face legal prosecution merely for being nude. A top free beach or topless beach is one where upper body clothing is not required for women or men, but a swimming costume covering the genitals is required. In such places a person could face legal prosecution merely for being completely nude (uncovering the genitals) since complete nudity is not officially permitted.

Outside of those areas, community and legal acceptance of public nudity varies considerably. To avoid offending the public in general, public authorities maintain what are sometimes called “standards of decency”. What falls outside these standards is usually termed “indecent exposure”. Indecent exposure is the display of nude parts of the human body that, according to the standards of the local cultural norms, should be clothed. These standards, however, vary with time and place. Most people object to public nudity in a sexualized context, or when children are an issue. Some people regard those who appear nude in public as trying to draw attention to themselves. If the attention seeking is to oneself, it may be referred to as exhibitionism. Exhibitionism is the psychological need and pattern of behavior to exhibit naked parts of the body to other people.

There are also some people who disrobe in public to attract attention or publicity to themselves or to a cause they support. There are also those who engage in “streaking”. Streaking is a non-sexual act of taking off one's clothes and running naked through a public place, often the sites chosen are sporting events. There are also others who spontaneously disrobe in public, as an expression of their freedom and the shedding of inhibitions, an example being skinny dipping. Skinny dipping is swimming in the nude.

There are some people who object to any public exposure of a naked human body, on moral, religious or decency grounds, and usually regard the exposure of a naked body as inherently sexual. Some people are Gymnophobic. Gymnophobia is a fear or anxiety about being seen nude and/or about seeing others naked, even in situations where it is socially acceptable.

The degree to which a person can be exposed to be considered “indecent” varies with cultural standards. At one extreme is the former Taliban regime in Afghanistan which considered the exposure of any part of a woman's body in public as indecent, and required all women to wear a burqa, an all-enveloping tent-like outer garment designed to be worn by women in public. A less extreme example is the requirement of some religions for women who enter a church to wear “modest” clothing and to cover their heads. Modesty comprises a set of culturally and/or religiously determined values that relate to the presentation of the self to others.

In recent times, public nudity is becoming more common with nude sporting events and other activities being held. These include naked hiking (Free Hiking), naked walking, naked running, naked boating, etc. All are sub-sets of the modern form of social nudity. There is also the World Naked Bike Ride, an international event in which participants plan, meet and ride together en masse in the nude on human-powered vehicle to protest oil dependency and celebrate the power and individuality of human bodies.

The Legality of Nudism

The following does not constitute legal advice. In order to arrive at legal understanding, it is necessary to know much more than the words in the criminal codes (some of which have been around for well over a hundred years) or those contained in excerpts from court opinions.

Of course whether practicing nudism can be done legally, and where it can legally be enjoyed are issues that vary dependent upon where a person lives. At the present time at least, in my home state, Texas, public nudity is lawful on private property at the several nudist resorts and venues within the state. These are open, advertised locations and not operated in any secretive, clandestine manner. But even at these sites, nudity must be confined away from locations where people outside the facility might view and be offended by nudity as this could result in criminal complaints.

In the Texas the statute that is most of interest with respect to nudism is found in Section 21.08 of the Texas Penal Code. Here is the statute in its entirety.

INDECENT EXPOSURE (a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act. (b) An offense under this section is a Class B misdemeanor.

The language of this statute does not per se criminalize public nudity. As the law reads, a person exposing his (her) anus or any part of his (her) genitals is only guilty of an offense if he (she) does so for the purpose of arousing or gratifying the sexual desire of “any” person. But a couple of things need to be considered. First, “any person” includes persons exposing themselves and second, while intent can never legally be assumed but is an element that must be proven in court, for some reason, unlike other laws, enforcement officials will often impute the intent when it comes to the indecent exposure statute. In other words they will often assume the reason a person would expose his (or her) anus or genitals in public is because they were seeking to arouse or gratify their own sexual desire and are not at all hesitant to take enforcement action (i.e. make arrests). As a result, a person is well served by erring on the side of caution in Texas and refraining from engaging in public nudity anywhere other than resorts or other clothing optional venues where it is known to be lawful conduct.

Other jurisdictions are more lenient and some more restrictive on where a person may engage in public nudity. In California for example, the California State Supreme Court has ruled that nudity alone is not illegal or criminal unless accompanied by acts of lewdness. Again what constitutes “lewdness” varies from jurisdiction to jurisdiction but again from the Texas Penal Code, here is the governing statute from Section 21.07.

PUBLIC LEWDNESS (a) A person commits an offense if he (she) knowingly engages in any of the following acts in a public place or, if not in a public place, he (she) is reckless about whether another is present who will be offended or alarmed by his (her): (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor.

I and I think the majority of nudists do not wish to offend anyone or force other unwilling persons to observe us in the nude. At least for me, having other people see me naked or seeing other people naked is not a part of what nudism is about. I for instance simply want access to locations where I can enjoy simple, normal, every day activities in the nude; like sunbathing, swimming, hiking, running, etc. Certainly I am not an activist when it comes to pressing the issues and winding up on the wrong side of a public exposure or lewdness complaint. So I do refrain for the most part from enjoying time spent in the nude anywhere but within the privacy of my own home or at recognized venues where public nudity is lawful. At times I may enjoy spending time nude in remote backcountry areas when camping or backpacking, but I certainly take reasonable precautions like keeping a pair of shorts handy that I can quickly put on should someone happen along who might be offended.