Some people believe that being naked in public can get you arrested and charged with “indecent exposure.” In fact, this is simply not necessarily true!
There are actually three statutes in our legislation that could apply in situations involving being naked in public. In each statute, there needs to be an illegal “act” or a “behaviour” that accompanies the nudity to make it into an offence. Simply being naked is not, of itself, an offence. None of the laws state that you cannot be naked in a public place.
So, let’s take a look at the three statutes and how they would be applied.
In New Zealand there is no statute prohibiting nakedness in public. In cases of public nakedness the courts go to the Summary Offences Act 1981 and consider:
• Section 27: 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.
(2) It is a defence in a prosecution under this section if the defendant proves that he or she had reasonable grounds for believing that he or she would not be observed.
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, whether you are naked or fully clothed.
• Section 4: 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.
Two 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 Ceramalus case of 1995 (appeal to the High Court lost, appeal to the Court of Appeal declined) indicates that "the street" is not a place where nakedness is known to occur.
One other piece of legislation is contained in the Crimes Act, 1961:
• Section 125: Indecent act in public place
(1) Every one is liable to imprisonment for a term not exceeding 2 years who wilfully 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.
(2) It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed.
(3) For the purposes of this section, the term place includes any railway carriage, and also includes any ship, aircraft, or vehicle used for the carriage of passengers for hire or reward.
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. You can be naked and be doing nothing - just as you can be clothed and doing nothing. In fact, you can be prosecuted under section 25 if you do an indecent act even while clothed! Nudity is a state of being - not an action.
It cannot always be specified that you can or can't go naked (ie: be forensically "disorderly") in any given situation. In your own backyard, for instance, if a neighbour decides to take offence and call the police, they may well call in on you, although would be highly unlikely to charge you unless you were engaged in some sexual act. In general, District Court judges in these cases tend to follow expectation, tested with the evidential reaction of those around. The average reasonable person is not going to be offended simply by seeing a naked person.
In addition, there is a forceful argument worthy of note. In 1990 New Zealand enacted a statute to affirm recognition of the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights; which both declare the human person to have inherent dignity and worth. That statute is the Bill of Rights Act.
Such dignity and worth obviously must apply to the complete human person. If it is not the whole person, it is meaningless. Therefore no part of the person which has inherent dignity and worth can be rationally determined to be an attack on society. No mere part of a human form can rationally cause disorder, nor can it offend the average reasonable person – as conflated within the Bill of Rights. If that average reasonable person (that is the Bill of Rights Act) is not offended or disordered, then a reaction that is inconsistent with that now defined norm must be forensically unreasonable and thus disregarded.
Can a local authority impose a bylaw prohibiting public nakedness? A few years ago North Shore City Council tried that on regarding Leonard's Beach on Auckland's North Shore. It failed because it proved unenforceable. Any bylaw can be enacted, but it cannot impose a penalty greater than that of statute. Since there is no statue law forbidding nudity, no penalty can apply.
This information is kindly supplied from the Free Beach Ambassadors booklet by Free Beaches NZ Inc., with amendments by Hauraki Naturally.