Friday 28 January 2011

Do laws against nudists and naturists violate their rights?

Let me say right from the beginning of this article, I am not a nudist or a naturist.

Naturism is the philosophy of living in harmony with nature. This includes an affinity and respect for wildlife and the natural environment, an attempt to live a healthy lifestyle with natural foods, and the acceptance of the human body as naturally good and wholesome, hence a rejection of the culture of lust and shame regarding the nude human body. The latter belief by itself is, of course, nudism, the belief that there is nothing wrong with not wearing clothing, and a lifestyle that includes nudity.

The nudist movement has centered on private nudist clubs and resorts, while the naturist movement has focused on nude beaches, springs, and back yards. Both nudism and naturism have been under increasing attack by the so-called ‘religious right’ and laws are being passed in certain communities prohibiting nonsexual nudity even inside one's home.

The issue of nudity in public places or on private property which is exposed to public view is now before a court in the province of Ontario, Canada. According to a prominent defence lawyer, Clayton Ruby, Canadian laws prohibiting public nudity are an infringement of the constitutional rights of nudists. He is arguing that the laws are overly broad, and should be struck down and the laws under the Canadian Criminal Code updated.

Section 173 of the Code states—

Every one who willfully does an indecent act in a public place in the presence of one or more persons or in any place with intent to thereby insult or offend any person is guilty of an offence punishable on summary conviction (it’s a misdemeanor offence)

I suppose the issue in such a charge would be whether or not parading about in the nude really offends people with the intent to insult them.
Section 174 of the Code states—

"Every one who without lawful excuse is nude in a public place or is nude and exposed to public view while on private property whether or not the property is his own is guilty of an offence punishable on summary conviction." (it’s a misdemeanor offence)

The Section also states—

"For the purpose of this section, a person is nude who is so clad as to offend against public decency or order."

Again, the issue in such a charge is whether or not being nude really offends against public decency or order.

I should add that no proceeding is supposed to be commenced under this section without the consent of the Attorney General of any province in which the charge is to be laid. I would be remiss however if I didn’t state that such a charge being laid is not invalid simply because consent wasn’t necessarily obtained by the provincial Attorney General.

As to what constitutes public decency or order, the courts have resorted to the standard used for ‘obscenity’, namely, contemporary Canadian standards of tolerance.

Words like ‘obscenity’ when used in the criminal law context invoke an objective consideration of conduct by reference to community standards of tolerance. That standard moves the debate beyond mere considerations of how the community expects people to act to considerations of what the community can tolerate. The level of tolerance is tied directly to the harm caused or threatened by the conduct in issue.

In describing how the community standards test should be applied to obscenity, Mr. Justice Sopinka of the Canadian Supreme Court of Canada in R. v. Butler, said in part—

“The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Antisocial conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of risk of harm the lesser the likelihood of tolerance.” unquote

A harm-based community standard of tolerance approach has been used to give meaning to the following phrases: immoral, indecent or obscene performance. This would encompass two nude people having sex on a public beach in view of one or more persons but would it also include two nude people simply walking along the beach? I don’t think so.

There is, however, one important difference where the community standard of tolerance is applied to allegations of indecency or immorality as opposed to allegations of obscenity. In determining whether the act of walking about nude on a public beach is obscene, one considers only the inherent aspects of the act; which does not include the intention of the act and the surrounding circumstances which are irrelevant.

Unlike the determination of obscenity, the determination of indecency and immorality depends on the act itself and the surrounding circumstances in which the conduct is being carried on. Conduct not immoral in some circumstances, such as when carried on in private, may become immoral by reason of the surrounding circumstances in which it takes place such as in public view.

In Tremblay, Mr. Justice Cory of the Supreme Court of Canada, writing for the majority, took a similar contextual approach in applying the community standard of tolerance to the word indecency. He said at page 117—

“In any consideration of the indecency of an act, the circumstances which surround the performance of the act must be taken into account. Acts do not take place in a vacuum. The community standard of tolerance is that of the whole community. However, just what the community will tolerate will vary with the place in which the acts take place and the composition of the audience. For example, entertainment which may be tolerated by the community as appropriate for the patrons of a bar may well be completely inappropriate for an audience of high school students. What is acceptable in a stage production performed for adults may be completely unacceptable if performed for elementary school pupils in a school auditorium.” unquote

I think the phrase ‘as to offend against public decency or order’ in Section 174 must refer to some form of conduct in which the conduct is more sexual in nature and must, considering the circumstances, go beyond what the community is prepared to tolerate. That determination is made in part based on the assessment of the harm which may flow from exposure by the people who are the audience to the conduct.

In order for a court to make a determination on an objective basis, a test known as the ‘community standard of tolerance’ test has been developed.

That test is not based on the public’s own personal tastes but is based on a contemporary standard of tolerance of the Canadian community as a whole.

It matters not what the public per se thinks is right for themselves personally as to what they may be exposed to but, rather, what they would not tolerate the other Canadians being exposed to. Given that the standard is tolerance and so what matters is actually what others may be exposed to, because the individual members of the public allegedly exposed to sexual immorality is relevant. The court must therefore also consider that contemporary tolerance will vary depending upon what the public sees and the circumstances surrounding the act of nudity. The court must determine, as best it can, what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure.

Harm in this context means that it predisposes persons to act in an antisocial manner; in other words, a manner which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance. The public must consequently ask themselves if they think that Canadians as a whole would tolerate their children being exposed to people walking about in public while nude.

The words ‘public decency’ presents the second interpretative problem raised by Section 174. In giving meaning to the words ‘public decency’ the approach used in defining words used in the criminal law context, ‘public decency’ cannot refer simply to societal norms or values that society views as proper and good. The term must have a more restricted meaning and refer only to those core values which are central to the maintenance of a free and democratic society.

To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community; is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract. On the other hand, I cannot agree with the suggestion of some that Parliament does not have the right to legislate on the basis of some fundamental conception of morality for the purpose of safeguarding the values which are integral to a free and democratic society.

According to the Federation of Canadian Nudists, these laws are archaic because they define nudity as generally ‘indecent’ and intended to cause ‘harm’ to those who witness it.

The challenge is being launched on behalf of Mr. Ruby's client, Brian Coldin, a nudist resort operator in Bracebridge, a small cottage country town about two hours north of Toronto. Mr. Coldin, who has been arrested numerous times over the years for public nudity, was charged last year with five counts related to incidents between April 2008 and May 2009 near his resort and at both Tim Hortons and A&W drive-throughs. I can only presume that with respect to Tim Hortons and A&W drive-throughs, he was nude when he was in his vehicle.

The criminal trial, which began last fall, heard testimony from one of the restaurant workers who cried on the stand when she described how Mr. Coldin and two others drove up to the pick-up window completely nude. She said Mr. Coldin and the driver both pretended to reach for their imaginary wallets to pay for their orders, causing their genitals to sway back and forth. A similar incident allegedly occurred at the Tim Hortons.

Mr. Ruby had argued Mr. Coldin wasn't completely nude in the incidents and was at the very least wearing sandals. That is really stretching the defence of nudity. Would that same defence hold up in court if the three of them walked in the halls of an elementary school? I think not.

I remember years ago when I was practicing law being asked to enter a tavern in which the waitresses were partially nude and advise the owner of the tavern of his legal position. The law stated that they couldn’t be fully nude but if they wore some other piece of clothing, they wouldn’t be charged under section 174. They wore brassiers and shoes. I said to the owner, technically they were within their rights. They were never charged.

Much of the criminal law in Canada (and probably elsewhere) is based on moral conceptions of right and wrong and the mere fact that a law is grounded in morality does not automatically render it illegitimate. First, the notions of moral corruption and harm to society are not distinct, but instead they are inextricably linked. It is moral corruption of a certain kind which leads to the detrimental effect on society.

But does walking on a public beach constitute moral corruption? I think not.

The concept of morality for criminal law purposes must be restricted to those core values which are integral to the existence of a free and democratic society—a society in which personal autonomy has priority except where the exercise of that autonomy poses a real risk of harm to others. In my view, conduct that endangers the morals of a child is that which poses a real risk that the child will not develop those values which are essential to the operation of a free and democratic society.

But will a child seeing a nude person walking on a beach suffer the risk of not developing those values which are essential to the operation of a free and democratic society. I think not.

Mr. Ruby also argued that the defendant’s nudist's behaviour was not done in a ‘prurient or indecent manner’ but was done as a right given to him by the Canadian Charter of Rights.

In the United States, a federal judge struck down Daytona Beach's anti-nudity laws, saying they're unconstitutional. Regulations prohibiting public nudity and nudity in places that sell alcohol violate the First and 14th amendments' protections of free speech and equal protection, the judge decided.

Daytona Beach also failed to prove its claim that adult nightclubs create secondary negative impacts on levels of crime, prostitution and illegal drug activity in neighborhoods, the judge wrote. Public nudity has been an issue at some Daytona Beach gatherings, such as Biketoberfest and Spring Break.

There are no federal US or Canadian laws that either allows or prohibits nudity. The courts have not ruled whether the right to engage in naturism is guaranteed by either nation’s Constitution under its freedom of expression provision. Thus, the legality of various forms of undress is currently left up to the individual states and provinces and localities to decide. Nudity is generally allowed in some areas of some national parks, unless local laws have overriding jurisdiction.

In 1981 (Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66), the U.S. Supreme Court ruled on nudity, as it appears in movies, plays and TV. They found that: "Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Further, nor may an entertainment program be prohibited solely because it displays the nude human figure. 'Nudity alone' does not place otherwise protected material outside the mantle of the First Amendment. This might be interpreted as protecting a naturist's right to engage in a nude demonstration or public performance on a beach. But the ruling does not appear to cover simple nudism.

In the State of Alabama, it has legislation which prohibits lobbying on behalf of nudism. It is clearly unconstitutional and could not withstand a court challenge. For this reason, the law is not currently being enforced.

A referendum in Newport, Maine, was conduced at the time of the 1998-NOV-3 elections. It would have asked selectmen in the city to ban the display of female breasts visible from a public way. The proposal was defeated. The vote was triggered by complaints about a resident mowing her lawn while topless. It is not illegal in Canada for a female to publicly display her breasts.

One day in the mid 1950s when I was living in Victoria on Vancouver Island, I was sunbathing in my back yard in my bathing suit, when a silly woman next door threaten to phone the police if I didn’t change into something more ‘suitable’. I told her where she could stick her phone. She phoned the police and when two officers showed up in my backyard and saw me in my bathing suit, they apologized to me for entering the property and then went next door and gave the silly woman a tongue-lashing for calling them in the first place.

Years later, a man in Toronto was charged with lying on the grass in a public park in his bathing suit. The municipal law at that time prohibited anyone being in a public place wearing only their bathing suit unless they were near a body of water. It turns out that the man was sunning himself next to a pool and since that constituted a body of water; the case against him was dismissed. Soon after, the city fathers realized how silly that law about bathing suits in public places was and they removed that particular law from the books.

Some municipal, county, and state legislation limiting public nudity is aimed at controlling behavior in topless bars, XXX rated pornography, etc. However, unless carefully worded, it can limit the freedom of naturists to be nude in wilderness areas, in private nudist resorts and even in their own homes. A common approach among some state legislators is to introduce a bill to tackle what is perceived to be a social problem. Then they word the bill so inclusively as to criminalize naturist activities at private resorts, and topless beach wear, thong bathing suits, etc. In some cases, these bills would prohibit nudity even in the privacy of one's home.

My personal view is that people should be legally permitted to be nude on public beaches but at the same time, a certain area of those beaches should be set aside for those wishing to be nude so that those who might feel offended; can be on other beaches if they chose not be in the presence of nude people.

Further, I think it would be unconstitutional for any legislators to pass a law that prohibits nudist and naturists camps providing that such camps are on private property.

However, I don’t think that people should be permitted to sunbathe while nude on their property unless their property is sufficiently distant from their neighbours. I certainly don’t think that people should be nude while walking in public parks or on the street or driving into a drive-through.

I am not a prude. I like looking at naked women just as most men do but there has to be some limits as to where naked people can congregate. No doubt as the years move forward, those limits will be lessened but until then, I think the status quo should continue.


jeffclan said...

Hi Dahn!
I want you to know that I really enjoy your articles on the subject of nudity and the law. I find them thoughtful and informative, and I've used them as a launch pad in delving into these issues myself.
So I hope what follows isn't mis-interpreted as an attack, but more as an inquisitive student.
I also understand that your writing on this topic is an “op-ed” and an author is definitely entitled to his opinion on his own blog!! (Freedom of the press belongs to those who own one!)

So, getting to the point (eventually); Have you considered the idea that “My body, my choice” is a concept ingrained in both law and popular culture? The concept that won women the right to have an abortion. Is it not disproportionate that a person can end a life growing within them (and I'm not bashing anyone who's had an abortion, I don't want to turn this into a debate about abortion, I'm just drawing attention to the disparity of the law) because of “My body, my choice” but they can not decide what clothes, if any, they put on that body? Which is entirely theirs to do with what they please?

I also noticed a lack of attention to the Labaye test laid out by the Supreme Court of Canada (which in fairness to you did not deal specifically with these sections of the code, but does have a lot of weight on the topic of indecency) which replaces the Community Standards Test with a harm based test...though you do come to mention a harm-based analysis, this case cemented it – NO HARM, NO FOUL!

While there might be an argument to be made for “harm” arising from children witnessing two people having sex in public, which I do not support (but yet, think it's less detrimental than children seeing two people murder each other in a fictional t.v. Production... Also adults with children are definitely not harmed by it: where did their kids come from?), I ask you; Is there actual “harm” in someone seeing a nude body in a non-sexual element? Really? And I add that it's not about “liking” what you see.

There was also a case of 7 “TNT!MEN” arrested at the Gay Pride Parade in Toronto, under section 174. But somehow; “...charges appear not to have been laid, and a subsequent letter from the Ontario Crown Attorney's Office confirmed that none would be forthcoming. A press release from the group cheerfully notes the Crown's conclusion that the appearance of the seven, 'clad only in footwear and sunscreen' didn't give rise to a 'reasonable prospect of conviction'.” (!men+pride++arrested&source=bl&ots=WdDLNBQxoq&sig=HtMxGhb-DLshXNmVJiU_kylqWGI&hl=en&sa=X&ei=CIyhUPLLDaXu2QW0voB4&sqi=2&ved=0CD4Q6AEwBQ#v=onepage&q&f=false) Which many people took to mean; “only protective footwear and sunscreen is needed to keep you un-nude”.

I hope Coldin appeals his case because I think Justice Douglas made several errors in law, and I hope you write some more on this topic. You do it well!


jeffclan said...

Hi Dahn,
One other thing; the laws surrounding nudism are of great interest to naturists, especially one like myself who has tried (very much so) to understand them.
With a court ruling about John Cropper of Orillia having charges against him dismissed for walking nude along the Uhthoff Trail, pre- Brian Coldin... Could it not be said these laws are unconstitutional for being too vague and over-reaching? I for one, am left guessing at their meaning!