New Zealand Police - Guidance Notes

In the absence of official guidelines to New Zealand Police that specifically deal with the Naturist Lifestyle and what constitutes appropriate and inappropriate behaviour in accordance with New Zealand law, Hauraki Naturally offers this page as a guide to enable Police Officers to be consistent and to have a recognised standard approach when responding to complaints of nudity from members of the public.

We are not experts on the law, and we do not expect the New Zealand Police to be fully knowledgeable on the Naturist philosophy, but we hope this guide will provide a path to mutual understanding of what is, and what is not, appropriate behaviour so that, firstly, responding officers will not find themselves needlessly wasting time and resources and secondly, that genuine naturists will be free to go about their lawful activities without fear of needless police intervention.

 

This guide is based on a similar document issued by the College of Policing (UK), adapted to align with New Zealand statutes, precedents in law, and conditions.

Public nudity guidance and decision aid:

Naturism can be defined as “a way of life characterised by the practice of nudity, both alone and in social settings.  It encourages self-respect, respect for others and for the environment, embodying freedom and a unique sense of communion with nature.  It is purposely non-erotic and non-sexual.  The Naturist philosophy asserts that the naked human body is inherently decent and that clothing should not be worn out of shame, but for practical reasons such as warmth, protection.”

While some confine their activities to their own private property or in clubs, many use public beaches, lakes and rivers throughout New Zealand.  Others engage in hiking and tramping in country areas and national parks, leisure areas and other public spaces. There is no legal power in New Zealand to designate particular areas as “nudist” or otherwise.

Naturists have a right to freedom of expression, which only engages criminal law if they commit sexual offences or use disorderly behaviour that they intend to or are aware may be disorderly within the hearing or sight of a person likely to be caused harassment, alarm or distress.  For behaviour to be "offensive behaviour”, it must be calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.

Although officers should consider every situation according to its own circumstances, forces should adopt a consistent approach to naturism to maintain public confidence in the police and to avoid the inappropriate use of police powers.  Due diligence needs to be exercised, therefore, with regard to Section 5 of the Crown Law document, SOLICITOR-GENERAL’S PROSECUTION GUIDELINES, 1 July 2013: The Decision To Prosecute.

The test for prosecution needs to meet the evidential test criterion of, among other elements, the “Commission of a Criminal Offence”. This requires that careful analysis is made of the law in order to identify what offence or offences may have been committed and to consider the evidence against each of the ingredients that establish the particular offence.

Three pieces of legislation are available for consideration in relation to public nakedness:

• Section 4, Summary Offences Act 1981:  Offensive behaviour or language

(1)  Every person is liable to a fine not exceeding $1,000 who,—
.
        (a)  in or within view of any public place, behaves in an offensive or disorderly manner.


Conduct amounting to an offence under Section 4, Summary Offences Act 1981 requires that a person needs to have used disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.  To get a conviction, officers would have to prove something more than, for example, that some people were seriously offended.  They would have to prove an offender disrupted public order so much that other members of the public were unable to go about their normal activities in that public place.  For behaviour to be "offensive behaviour”, it must be calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.

Legal precedents have been set by the courts in respect of Section 4:
 
1.   The Ceramalus case of 1991 (an appeal to the High Court won) determined that the legal definition of "offensive" was not met by mere nakedness, even in the presence of school children, in a place where nudity was "not uncommon" or "known to occur".

2. The Lowe case of March 2010 determined that Mr Lowe's nakedness while cycling along a country road had not met the test of offensive or disorderly behaviour.  Justice Dennis Clifford quashed the conviction and fine.

NOTE:  It is common for people to believe they must “protect” children from seeing a naked adult.  The fact is that there is no empirical evidence to suggest that this is in any way harmful to children.  If it was, then it would be illegal for children to attend Naturist Clubs.  In fact, there is plenty of evidence to suggest that nakedness is beneficial to children, enhancing body-positivity, self-worth and acceptance.

• Section 27, Summary Offences Act 1981:  Indecent exposure

(1)  Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals.

The defining word here is "obscenely".  A charge under this section requires proof that some obscenity has been committed.  Obscenity requires some element of lewdness or lasciviousness, so this charge is regarded as inappropriate for a case of mere nakedness.  However, lewd acts of a sexual nature would certainly fit in this category.

• Section 125, Crimes Act, 1961:  Indecent act in public place

(1)  Every one is liable to imprisonment for a term not exceeding 2 years who willfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

This piece of legislation is not used in cases of simple public nudity because being naked is not, by definition, an act.  An "act" involves carrying out an action; doing something; performing a deed.  Simply being naked is not an act.  For this charge to succeed there has to have been an indecent act performed, for example, masturbating in view of the public.

A naturist whose intention is limited to going about their lawful business while naked will not be guilty of any of these indecency offences.

It should be understood consistently throughout New Zealand Police that prosecution will normally only be considered if a substantive offence has been committed and both the public interest and evidential tests are met. The tests will be based on proportionality to the seriousness of the incident and the likely level of sanction.  recognising that in recent years attempted prosecutions of naturists have all failed.

In deciding what action to take, officers need to also consider that any arrest, while unlikely to lead to prosecution, could result in a lasting impact on the individual and their career.  This is an important factor to consider in terms of the proportionality of the police response.

In the lawful situation where there is an absence of any sexual context in relation to nudity and where the person does not intend the behaviour to be, and is not aware that it may be disorderly, it will not be appropriate to take any police action.  The following decision aid may assist in determining the most appropriate and lawful response to a reported incident.

NOTE:  Officers and staff receiving reports need to avoid their personal views on public nudity affecting their decision making, which must be based on the legal framework that exists.

Decision aid for call handlers

Questions to ask of someone reporting public nudity:

•    Is the person in a place where there are other people?
•    Are they in their own home or garden?
•    What is the person doing?
•    Are they doing something sexual or are they just naked?
•    Did the person see you?
•    Did they say or do anything towards you (like flaunting themselves)?
•    Do they seem to be unwell, or under the influence of drink or drugs?

 

 

Behaviour described by caller

Passive behaviours

in private

Passive behaviours

in public

Disorderly

behaviours

Sexual

behaviours

Disturbed

behaviours

Sunbathing,

walking, cycling,

swimming,

gardening, home

maintenance, etc.

Sunbathing,

walking, cycling,

swimming,

gardening, home

Maintenance, etc.

Causing

harassment,

alarm or

distress towards

others

Flashing,

outrageous

sexual behaviour,

public sex acts

Suspect that

may be affected

by mental ill

health, alcohol

or drugs

Provide advice

If they are on

their own property,

it will be

lawful activity.

Explain to caller

that no offences

are being

committed

No police action

necessary

Provide advice

If they are on

their own property,

it will be

lawful activity.

Explain to caller

that no offences

are being

committed

No police action

necessary

Police response

Police attendance

Police response

Police attendance

Safeguarding

response

Police attendance,

consider calling

ambulance.

Decision aid for responding officers

Is there clear sexual motivation to the subject's actions?

No

Has the person been "disorderly" and caused another person actual harassment, alarm or distress (as opposed to considering the likelihood of this or the complainant finding it personally distasteful or offensive)?

No

Yes

It will normally be appropriate to take no further action.

Advise complainant.

Consider: Offensive behaviour or language - SOA Section 4

Consider general powers of arrest

Yes

Has the subject intentionally exposed their genitals to another person, intending to cause them alarm or distress?

(Flashing)

Yes

Consider: Indecent Exposure - SOA Section 27

Consider general powers of arrest

Has the subjectdone an act of a lewd, obscene or disgusting nature which causes outrage to a reasonable person?

(This is a high test)

Yes

Consider: Indecent act in public place - CA Section 125 

Consider general powers of arrest

Further Reading:

 

A similar approach to cases of public nudity is outlined in the United Kingdom where The Crown Prosecution Service (England) has produced guidance to prosecutors titled Nudity in Public – Guidance on handling cases of Naturism.

 

Following the Ceramalus case - Ceramalus V Police (Unreported, High Court, Auckland, Tomkins J, - 8 July 1991, AP76/91) advice was issued to New Zealand Police.  A copy of the document is reproduced HERE