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exhibitionism is a public offence

what does the word “public” mean?

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Everyone knows what exhibitionism is: it is the act of exposing oneself to someone who doesn’t want to be exposed to. Simple, right? Well, yes…and, no.

The law defines exhibitionism as a willful (that is, not accidental) act carried out with the intention of insulting and offending the victim, usually a female. Furthermore the act must be a public one. Displaying oneself in one’s own home does not qualify.

Fairly straightforward so far, but now it gets complicated.

What happens when, for example, a person exposes himself in his own home, but in such a way that the neighbours or passers-by can see? Does that make it a public act?

And what does the word public mean?

Legally, public is taken to mean more than one person. If, then, only one neighbour, or only one passer-by, views the offending organ through an open window, is that person the public? And can a male go around exposing himself as often as he likes, as long as he does it to no more than one person at a time?

Questions multiply and lead to a multitude of possibilities which in turn lead to a multitude of interpretations, so much so that, as we shall see, rulings on the matter are less than consistent. In other words, the word public is interpreted widely, allowing full play for judicial discretion and judicial bias.

Consider for example Rex v Black (State Reports, NSW, V.21, p.748): In 1921, a man living with his wife and four children had a disagreement with his wife. He then went into the bedroom and undressed, and came back naked into the living room where he exposed himself to his wife, a daughter aged twenty, and a son aged thirteen. He was convicted and sentenced to six months hard labour. A hefty sentence indeed.

On appeal, his counsel argued that the conviction could not be sustained because exposure can only be an offence if it occurs in a public place or a place open to public view. The learned judge, Justice Pring, after due and weighty pondering over this “repulsive and abominable” act, upheld the conviction.

Let’s now jump to R v Udod, 1951 – not such a large span of time in matters of law. Besides, the sex revolution was still more than a decade away, so morality and values had not yet changed to any substantial degree. Irrespective of that, precedents are still precedents; they are binding and must be adhered to.

R v Udod (State Reports, S.A. 1951, p.176) cites the case of a boarder, Gregor Udod, who occupied a room adjoining the kitchen in a dwelling house at Parkside. On the afternoon of 1st September, 1951, while under the influence of intoxicating liquor, he came from his room to the kitchen dressed only in a singlet and underpants. The front of his underpants was open, and the accused’s naked person was exposed to the view of his landlady, her husband, her mother, and her daughter (aged five years) who were in the kitchen.

This, by any measure, is a worse offence than the earlier one, because it occurred in front of strangers, including a girl aged five. But the learned judge, Chief Justice Napier, ruled that the gist of the offence was “publicly exposing the person” and the house in this case being a private one, that element of “public-ness” was not fulfilled. He promptly discharged the accused.

Here we have two similar cases – the offence is the same and the setting, a private house, is also the same – yet the verdicts could not be more dissimilar.

Please note, we are not offering, in this article, a “correct” interpretation of the word public. We are merely pointing out that the laws relating to exhibitionism are ill-defined and the word public is so broad as to be virtually meaningless.

And we have not even touched on the other element of the crime: that exhibitionism is a willful act carried out with the intention of insulting and offending the victim. Another can of worms! which we will look at in a future article.

To conclude: laws relating to exhibitionism are vague and ill-defined. Times have changed and exhibitionism laws need a thorough overhaul, if they are to remain relevant in this day and age.

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