Kiwi Polemicist

October 9, 2008

Public nudity, beaches, and excessive regulations – Part 3

(Part 1 can be found here and Part 2 is here)

This is from Stuff:

Nudist ordered to cover up

An embarrassed Wairarapa man is the first nude beachgoer to be ordered to cover up on the Kapiti Coast because his behaviour was deemed offensive.

Senior Sergeant Alasdair MacMillan said a member of the public complained about a man sunbathing nude near the Kapiti Boating Club on Paraparaumu Beach about 3pm on Sunday.

The 26-year old Featherston man was found sunbathing with just a towel covering his eyes, and the rest of his body soaking up the sun.

“It was brought to our attention that someone found it offensive and police went down there,” Mr MacMillan said.

“The man thought it had been made legal. He was very embarrassed and left with a warning.

“If someone thinks it is offensive, we take each case on its merit.”

The man would have faced charges if he had not dressed and moved on, Mr MacMillan said.

Kapiti Coast district councillors decided last month to remove any reference to naked sunbathers from the proposed 2008 beach bylaw, on the grounds that it would be unlikely that the council could successfully prosecute anyone for being nude on the beach.

Instead, any behaviour regarded as lewd or offensive would be dealt with by the police.

The issue has sparked heated debate in the community.

Submissions to the draft beach bylaw close on October 24.

I have two comments regarding this:

1) the police are suggesting that it is a question of offensiveness: it is not, because the exposing of genitalia in public is a crime according to s27 of the Summary Offences Act:

(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.

In other words, the police could have arrested this man on sight (sorry) and did not have to give him an opportunity to cover up because he had broken the law. When the police suggest that it is a question of offensiveness they are either ignorant of the law or they are choosing to ignore s27 (above), and instead apply laws that cover offensive behaviour and indecent acts. Perhaps they also wish to make themselves appear to be kind and merciful.

The laws that cover offensive behaviour and indecent acts are subject to interpretation by the courts (case law or common law), and the police used this wriggle room to avoid taking action against the Boobs on Bikes parade (click here and here), but there is no wriggle room with the man on the beach: I believe that the police are using whatever law is most convenient at the time and ignoring those that are inconvenient.

2) I am happy to hear that the police exercised discretion and did not arrest the man because he agreed to cover up. However, this is a double standard because the police have failed to exercise discretion in so many cases where there have been complaints about parents smacking children.

It is a matter of concern when a Police Senior Sergeant is either ignorant of the law or misrepresenting the law.

**********

This type of nudity is legal, although some might deem it to be indecent.

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