Public Nudity

Public Nudity

“Dogging”, is sexual activity that takes place in a public context, (its got nothing to do with your pet!).
It refers to a person or more than one person performing a sex act in a public place or in a private place which can be viewed from a public place. Such private places can include the back yard or even the bedroom with the curtains open. It also includes such acts in a semi-public place, where the general public is free to enter, such as a shopping mall.
Public places where sex acts can be performed include a car (commonly called “parking”), on a beach, in the woods, as well as in a theatre, bus, street, toilet, cubicle or cemetery.

There are many and varied laws which apply to sex in public, which use a variety of terms such as indecent exposure, public lewdness, gross indecency beside others and it is important that you understand them.

In the UK:
As a result of the Sexual Offences Act 2003,
Exposing yourself: s66 A person commits an offence if he/she intentionally exposes his/her genitals, and  intends that someone will see them and be caused alarm or distress, so it is a defence that it was never intended that someone would see them. Similarly if it was not expected that anyone would be caused alarm or distress, then no offence is committed and a number of prosecutions have failed because police officers have witnessed the act concerned and then been asked if they were caused alarm or distress, to which they answered “No, I’ve seen it all before”. Beware however that officers are now trained to answer “I was alarmed that this could cause an incident and alarmed for the couple’s safety”.

Voyeurism s67: A person commits an offence if for the purpose of obtaining sexual gratification, he/she observes another person doing a private act, and knows that the other person does not consent to being observed for his sexual gratification. A person also commits an offence if he/she operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person doing a private act, and knows that this third person does not consent to his operating equipment with that intention. It is also an offence to record another person doing a private act with the intention that the recording party or a third person will, for the purpose of obtaining sexual gratification, look at an image the person filmed  doing the act, and the person operating the equipment knows that B does not consent to his recording the act with that intention. It is yet another offence if a person installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit one of the other voyeurism offences. For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and the person’s genitals, buttocks or breasts are exposed or covered only with underwear, the person is using a lavatory, or the person is doing a sexual act that is not of a kind ordinarily done in public.

Sexual activity in a public lavatory s71:  A person commits an offence if he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise, and intentionally engages in a sexual activity.

In the United Kingdom, public sex comes under laws related to voyeurism, exhibitionism or public displays of sexual behaviour, but public sex laws are ambiguous because prosecution is also possible under s5 of the Public Order Act 1986, 3 or under the common law offence of outraging public decency. The policy of the Association of Chief Police Officers (ACPO) is that arrests are a last resort and a more gradual approach should be taken in such circumstances. The following types of conduct are examples, which may at least be capable of amounting to disorderly behaviour causing a disturbance in a residential area or common part of a block of flats;  pestering people waiting to catch public transport or otherwise waiting in a queue; sexual behaviour in a street late at night which might alarm residents or passers-by, especially those who may be vulnerable, such as the elderly or members of an ethnic minority group and s5 is used in cases which amount to less serious incidents of anti-social behaviour. Where violence has been used, it is not normally appropriate to charge an offence under section 5 unless the physical behaviour amounts merely to pushing or undirected lashing out of a type likely to cause no more than a glancing blow, minor bruising or grazing. Even under Public Order, there must be a person within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question and although a police officer may be such a person, the magistrates may take into account the familiarity which police officers have with the words and conduct typically seen in incidents of disorderly conduct and therefore are not caused harassment, alarm or distress (DPP v Orum [1988] Crim L R 848). (Note that although the existence of a person who is caused harassment alarm and distress must be proved, there is no requirement that they actually give evidence and the offence may be proved on a police officer’s evidence alone.

Dogging And The Law:
This is how the current law stands at present regarding sex in public places. There are laws that protect members of the public from being unwilling witnesses to sexual behaviour or from being harassed or intimidated in their use of public spaces or facilities. So sex in public toilets, parks or places where other passers-by may be offended is illegal. If you are in a private place or in a location where you wouldn’t expect to be spied upon, then you’re probably okay. Prosecution relies on a third party onlooker getting upset and reporting you. So, if you want sex under the stars, make sure you pick a secluded spot. Under section 66, the issue is intent to cause distress or alarm, so as long as you take sensible measures to not be viewed by innocent by-standers like choosing remote areas for your meetings and preferably late at night then you might be able to argue that you are making no malicious intent to cause distress or alarm.  Similarly under s67, the important thing is to make certain you have received an obvious invitation to watch people dogging, it’s all about consent, so as long as you aren’t deliberately sneaking up on ‘non-dogging’ courting couples who had no intention of being watched by anyone then you may be able to persuade the magistrates that no offence arose.

PSE is generally accepted, rightly or wrongly, to describe an area where open-air sex is lightly policed and for example people now pull off the nearby A3 for sex in the woods between Esher and Guildford and have little fear of being caught because the police patrols are surprisingly but deliberately infrequent. There is nothing in the law that explicitly prohibits having sex outdoors, unless it can be proved that you are causing ‘alarm, harassment or distress’ to someone, Indeed Surrey police admitted that

they had given out food and drink at public sex sites as part of their strategy of policing these sites by ‘providing teas and coffees to all members of society using the area for various reasons’. They also admitted knowing of 50 public sex or cruising sites in Surrey, including 19 in Guildford, six in Waverley, nine in Woking, eight in both Elmbridge and Mole Valley..

“The naked rambler”, Stephen Gough, famously tried to walk from Land’s End to John O’Groats in the nude and for most of the journey through England, he was able to continue his journey with only the occasional interruption by bemused police, but once in Scotland, his troubles really started because the Scottish Court of Appeal has interpreted the display of Mr Gough’s penis as likely to cause fear, alarm or annoyance and as he refuses to buckle, and continues to appear in Court naked on each hearing, he continues to be imprisoned for Contempt of Court, being jailed in Scotland 17 times in the past ten years, getting  two year sentences, and because he refuses to wear clothes in prison, he is held in segregation. He spent a total of six years in Scottish prisons. He is now in an English prison for breaching an ASBO (antisocial behaviour order) and outraging the public decency. In October 2014, the European Court of Human Rights ruled that European laws protecting privacy and freedom of expression did not apply to Gough’s naked rambling.

In R v Gorman (Birmingham mag’s), Sam Gorman performed a “streak” by running naked across a televised Premier league football match and was convicted under s.66 of the Sexual Offences Act 2003, given an 18 month community order and ordered to sign the Sexual Offenders Register for 2 years because it was found that his  intention was to cause alarm or distress and he was convicted. It should also be noted that when it comes to public nudity, the presence of children at and watching sport televised live is a material consideration.

 

One other thing to consider is the common law offence of “outraging public decency”. The law comprises “statutory law” enacted by Parliament and “common law” which is composed largely of precedents decided by judges in court and is an entirely subjective law designed to deal with outrageous lewd behaviour, for example stripping naked on a public bus and then urinating on the seats. (Dogging does not fall into the category of “outraging public decency” and at the time of writing, there are no examples of a conviction for “outraging public decency” by dogging. Effectively sex on the beach in isolated places is allowed, so long as there is a reasonable expectation of privacy – which someone engaging in such an activity would be expected to prove and it does not appear that CCTV viewing amounts to adequate public witnessing and a witness probably has to see the act of intimacy first-hand. (Remember that the presence of a child in the area will amount to a s11 criminal offence.