Episode 5: October 3, 2008
Criminal Law and Procedures
by Michael W. Flynn
Today’s topic is nudity.
But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Peeping Tom or Exhibitionist?
A reader from Texas wrote:
"My wife and I recently had a "friendly" visit from a local sheriff's deputy after an anonymous neighbor called to complain that he could see my wife nude in our bathroom through the window. In this case, our bathroom window is about chest level and the blinds were partially open. The bathroom is on the second floor of our home--none of [the] neighboring homes [are] two stories--so while it is possible someone may have seen her, it was not deliberate on her part. Of course it's legal to be nude in your own home, but is it a crime if someone can see you through a window?"
A great question. Many areas of the law pit privacy against public safety and morals, and some statutes might seem downright puritanical. There is generally nothing wrong with being naked in a place that is private. But, when does that place become public?
Legal Prohibitions on Nudity
Let’s start by answering the question first. Well reader, you are in luck! In Texas, there is no statewide law against the exposure of a woman’s breast. There are municipal codes in some cities against naked female breasts in public but none for areas outside these cities. In fact, if you are not in one of these cities, it does not seem to be a crime for your wife to march to the Piggly Wiggly topless. (I would highly recommend checking this with a criminal defense attorney in Texas before trying it though.)
Texas does prohibit nudity in other forms. You can be convicted of a class C misdemeanor for exposing your anus (such as mooning someone) or genitals in a public place and are reckless about whether another person may be present who will be offended or alarmed by this act. For example, a defendant was convicted for walking around naked on a beach where nudists congregated. There were about 100 other nudists. But, one man arrived at the beach and was offended. He called the police, and the defendant was later convicted.
Please note that there are laws in Texas that prohibit lewd behavior, which would include sexual acts or actions that are lustful or sexual in nature. So, a woman cannot dance topless in Texas, because it is considered more than mere nudity.
What is a 'Public Place'?
Let’s return to the question of what a “public place” is for the purposes of anti-nudity and obscenity statutes. At this point, I will be discussing the rules for states other than Texas, most of which do expressly prohibit display of a bare woman’s breast. The answer seems to depend on many factors, including the wording of the law that prohibits being naked and the particular facts and surrounding circumstances.
Surely the middle of Main Street would be a public place. And your front lawn is a public place if it is visible from a public street. But, what about the inside of your own house?
Most states prohibit lewd or indecent acts if they are visible from a public vantage point. For example, a man in Georgia was convicted for masturbating in front of his window that was visible from a public highway.
Most states prohibit lewd or indecent acts if they are visible from a public vantage point.
In contrast, a defendant in Pennsylvania was not convicted for masturbating in his house even though he was in front of a window. The complaining neighbor could only see the defendant when looking through a window in his own house. So, the court held that the defendant was not in a public place.
One Last Thing
One last point: while it does not really help decide whether a place is public, a person’s knowledge and intent can be important too. That is, a person who knows he is visible to the public is more likely to be convicted than a person who does not know. For example, a court acquitted a defendant when he walked around his house naked and was partially visible from a public street. But, the court suggested that had someone told him that he was visible, then he would have been convicted. That is because, by virtue of knowing that others could see him, he would have intended to be in a place that was visible from a public vantage point.
In practice, you will not likely be prosecuted for simply being naked in your own house. But, the Quick and Dirty Tip is to be very careful about where you are naked. If you do not agree with the anti-nudity statutes in your state, the best course of action is to write your local representative.
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to email@example.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.