Nudity and the Law in Washington State
A question often expressed in the various nudism forums:
I've hiked in the buff in Washington, but I don't want to worry about being seen because it's illegal. I've been to Rooster in Oregon and it was great. But I want woods and trails and legal nude hikes to lakes, rivers and hot springs. Legal to and from. Any ideas? Sure would appreciate any help.
Disclaimer: Legal information is not the same as legal advice . . . the application of law to an individual's specific circumstances. Consult a lawyer for interpretation and information appropriate to your particular situation.
"It's Not Illegal, Therefore It Must Be Legal"
I've had many disagreements, with those whose opinions I respect, over the meaning of 'legal'. In our legal system it is accepted that what the government does not prohibit (makes illegal by a law, for example), is therefore permissible and legal. I accept that philosophical underpinning of our legal framework. Where my problem comes in is with the confusion and interchangeability of the term 'legal' and 'legal rights'. Lacking any specific law prohibiting nudity, going about naked may be legal in the State of Washington but that does not give you a 'legal right' to be nude in this state. Public nudity is not a 'legal right' anywhere in Washington . . . the term 'legal' implying a codification of a 'right'. On other words, your right to be nude in public is not protected by law anywhere in Washington State. Please do not confuse the two terms.
That said, anti-nudity statutes, making public nudity illegal, exist on the books in many municipal and county areas; so it is prudent to research and know the laws in developed areas. For practical purposes, it is not a good idea to go about nude where it is not expected or tolerated within the city (outside of your own home or secluded property.)
Municipalities
It is a rare town or city that has not promulgated an anti-nudity ordinance of some sort . . . or rapidly rushed one into being when faced with complaints of public nudity. Seattle has had anti-nudity ordinances in the past but presently doesn't have one, instead relying on the state indecent exposure law to prosecute nudity within the city limits.
Municipalities may also prosecute simple nudity under various 'disorderly conduct' ordinances. For example, this is Seattle's Disorderly Conduct ordinance (partial, relevant part):
It is important that if you plan on getting publicly nude within the limits of a municipality that you have a pretty good understanding of what local law enforcement will tolerate. Festivals and events like the Fremont Solstice Parade (Solstice Cyclists here) or the World Naked Bicycle Ride are generally tolerated but if you walk naked as the day you were born up Main Street in downtown Everett you will end up in jail post haste!
County Ordinances
Every county is different on how they approach so-called public morality laws. Here in King County there is no ordnance prohibiting public nudity. Complaints of nudity are usually handled under municipal ordinances (if appropriate) or the state Indecent Exposure laws.
Just to the north, Snohomish County does have an ordinance (10.4.20) ) making public nudity within it's borders illegal. Passed to provide tools for the arrest of prostitutes and their 'customers', this ordinance has been used against simple expression of nudity within that county.
Washington State Code
The statute used most often in the State of Washington for prosecuting cases of nudity (simple or otherwise) is the Indecent Exposure statute, RCW 9A.88.010 and I'm going to quote part of it here as I think an understanding of this statute is very important as it affects nudists:
In order to make a charge of indecent exposure, and to have it stand in court, all elements above have to be met:
"It's Not Illegal, Therefore It Must Be Legal"
I've had many disagreements, with those whose opinions I respect, over the meaning of 'legal'. In our legal system it is accepted that what the government does not prohibit (makes illegal by a law, for example), is therefore permissible and legal. I accept that philosophical underpinning of our legal framework. Where my problem comes in is with the confusion and interchangeability of the term 'legal' and 'legal rights'. Lacking any specific law prohibiting nudity, going about naked may be legal in the State of Washington but that does not give you a 'legal right' to be nude in this state. Public nudity is not a 'legal right' anywhere in Washington . . . the term 'legal' implying a codification of a 'right'. On other words, your right to be nude in public is not protected by law anywhere in Washington State. Please do not confuse the two terms.
That said, anti-nudity statutes, making public nudity illegal, exist on the books in many municipal and county areas; so it is prudent to research and know the laws in developed areas. For practical purposes, it is not a good idea to go about nude where it is not expected or tolerated within the city (outside of your own home or secluded property.)
Municipalities
It is a rare town or city that has not promulgated an anti-nudity ordinance of some sort . . . or rapidly rushed one into being when faced with complaints of public nudity. Seattle has had anti-nudity ordinances in the past but presently doesn't have one, instead relying on the state indecent exposure law to prosecute nudity within the city limits.
Municipalities may also prosecute simple nudity under various 'disorderly conduct' ordinances. For example, this is Seattle's Disorderly Conduct ordinance (partial, relevant part):
SMC 12A.12.010 Disorderly conduct.While nudity is not mentioned, note that if you are told by a police office to put your clothes on and you refuse, you can (and probably will) be cited for disorderly conduct, at the minimum.
A. A person is guilty of disorderly conduct if he or she intentionally, maliciously and unreasonably disrupts any assembly or meeting of persons and refuses or intentionally fails to cease such activity when ordered to do so by a police officer or by a person in charge of the assembly or meeting.
It is important that if you plan on getting publicly nude within the limits of a municipality that you have a pretty good understanding of what local law enforcement will tolerate. Festivals and events like the Fremont Solstice Parade (Solstice Cyclists here) or the World Naked Bicycle Ride are generally tolerated but if you walk naked as the day you were born up Main Street in downtown Everett you will end up in jail post haste!
County Ordinances
Every county is different on how they approach so-called public morality laws. Here in King County there is no ordnance prohibiting public nudity. Complaints of nudity are usually handled under municipal ordinances (if appropriate) or the state Indecent Exposure laws.
Just to the north, Snohomish County does have an ordinance (10.4.20) ) making public nudity within it's borders illegal. Passed to provide tools for the arrest of prostitutes and their 'customers', this ordinance has been used against simple expression of nudity within that county.
Washington State Code
The statute used most often in the State of Washington for prosecuting cases of nudity (simple or otherwise) is the Indecent Exposure statute, RCW 9A.88.010 and I'm going to quote part of it here as I think an understanding of this statute is very important as it affects nudists:
RCW 9A.88.010
Indecent exposure.
(1) A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.
In order to make a charge of indecent exposure, and to have it stand in court, all elements above have to be met:
- An OPEN and OBSCENE EXPOSURE
- That it was done INTENTIONALLY, and
- That it likely would cause reasonable AFFRONT or ALARM
Whether you intentionally get naked with the knowledge that it is probably going to cause affront or alarm, the expression still has to be an 'obscene exposure'. There is a lot of confusion even in the law enforcement community over the difference between what we call 'simple nudity' and 'obscene exposure'. For most police officers, just the fact that you are nude is often enough for them to consider it obscene and arrest you . . . leaving it to the courts and prosecutor to sort the charging elements out. Of course, it costs you time and money, and sometimes your reputation, to defend yourself.
Much more onerous is that a police officer in the State of Washington does not need a warrant to make an arrest for indecent exposure . . . just probable cause and a complaint (RCW 10.31.100: Arrest Without Warrant). Most misdemeanor offenses are cited and the individual sent on his or her way with a promise to show up in court. Knowing that previous arrests for simple nudism under the Indecent Exposure statute rarely stand up (unless you plea the charge), the police have learned that as soon as they have one complaint this statute allows them to get the 'offending' person off the street with no repercussions. Immediate problem solved and the 'perp' is quietly released at the precinct a few hours later.
One important note on 'pleading the charge': Don't! If you meekly stand by and accept what the prosecutors and police suggest . . . plead 'guilty' . . . it's just a misdemeanor and a small fine . . . then you end up with a record for "indecent exposure" AND you could face the prospect of being labeled a sex offender and be required to register. Get a competent lawyer and fight the charge!
It should be noted (with limited exceptions) that state law does apply on federal lands (and I'll discuss that later in this article). If you are going to be cited and/or arrested because you are nude, it is probably going to be under the Indecent Exposure statute, RCW 9A.88.010. I've been told by the King County Sheriff's department that a complaint must be made by someone alleging affront and alarm; a deputy cannot be a victim of indecent exposure (aka nudity in their eyes). As the spokesman states, "I guess the courts have figured we've seen it all." Lost in most minds is that the exposure must also be 'obscene', a required charging element for indecent exposure in this state and most others. Without a complainant willing to testify before the court most indecent exposure charges are quietly dropped. Don't be coerced into admitting guilt.
Obscenity, Community Standards and the Supreme Court
Obscenity, lewd behavior, indecent exposure are relative terms. As one Supreme Court Justice said, "I know it when I see it." (Justice Potter, 1964) Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)
The current test for obscenity rests with the Miller Test (Miller v. California, 413 U.S. 15, 24-25 (1973). The Miller Test requires a Three-Pronged approach for courts to determine whether an act or expression is obscene:
Much more onerous is that a police officer in the State of Washington does not need a warrant to make an arrest for indecent exposure . . . just probable cause and a complaint (RCW 10.31.100: Arrest Without Warrant). Most misdemeanor offenses are cited and the individual sent on his or her way with a promise to show up in court. Knowing that previous arrests for simple nudism under the Indecent Exposure statute rarely stand up (unless you plea the charge), the police have learned that as soon as they have one complaint this statute allows them to get the 'offending' person off the street with no repercussions. Immediate problem solved and the 'perp' is quietly released at the precinct a few hours later.
One important note on 'pleading the charge': Don't! If you meekly stand by and accept what the prosecutors and police suggest . . . plead 'guilty' . . . it's just a misdemeanor and a small fine . . . then you end up with a record for "indecent exposure" AND you could face the prospect of being labeled a sex offender and be required to register. Get a competent lawyer and fight the charge!
It should be noted (with limited exceptions) that state law does apply on federal lands (and I'll discuss that later in this article). If you are going to be cited and/or arrested because you are nude, it is probably going to be under the Indecent Exposure statute, RCW 9A.88.010. I've been told by the King County Sheriff's department that a complaint must be made by someone alleging affront and alarm; a deputy cannot be a victim of indecent exposure (aka nudity in their eyes). As the spokesman states, "I guess the courts have figured we've seen it all." Lost in most minds is that the exposure must also be 'obscene', a required charging element for indecent exposure in this state and most others. Without a complainant willing to testify before the court most indecent exposure charges are quietly dropped. Don't be coerced into admitting guilt.
Obscenity, Community Standards and the Supreme Court
In Washington State the Indecent Exposure statute states "any open and obscene exposure" as one of the elements for charging. In most other states, indecent exposure is defined as "exposing one's genitals under circumstances likely to offend others" following what are called 'contemporary community standards'. The judge (or jury) as trier-of-fact gets to determine what those community standards are. However, Washington State adds the words 'obscene exposure' which . . . at least in my mind . . . raises the standard to those defined by the Miller Test of Obscenity as defined by the Supreme Court.
"While public nudity is objectionable to many citizens, under Washington state’s Indecent Exposure Law, public nudity in itself is not illegal. The law specifies that ..." Kenneth R. Bounds, (former) Superintendent, Seattle Parks and Recreation, responding to a compliant, dated 12 July 2006, about World Naked Bike Ride Seattle
"nudity alone is not enough to make material legally obscene under the Miller standards." 418 U.S. 153, 161 (1974)
The current test for obscenity rests with the Miller Test (Miller v. California, 413 U.S. 15, 24-25 (1973). The Miller Test requires a Three-Pronged approach for courts to determine whether an act or expression is obscene:
"(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, [Roth, supra, at 489,]
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. [Pp. 24-25.]" emphasis mine
The precedence of the Miller test holds in our state courts (see last para above). Lacking any patently offensive sexual conduct, simple nudity cannot be considered 'obscene'.
I'm not telling you to go out and test that defense (well, one, I'm not a lawyer). Just stating that this is how we need to approach the conundrum of simple nudity versus those who get nude in public for sexually-explicit purposes. It is our job as nudists to educate our politicians and law enforcement departments of the difference between these two mutually-exclusive activities; gaining wider acceptance of our lifestyle.
State Parks
Public nudity is specifically prohibited within Washington State Parks under an overriding state interest and authority of the statute creating the state park system.
WAC 352-32-100, Disrobing
State DNR Lands
The story behind Washington State Department of Natural Resources (DNR) land is less clear. The WAC 332-52 (Washington Administrative Code) does not address nudity on DNR lands, leaving state statute to apply . . . the Indecent Exposure statute RCW 9A.88.010.
Federal Lands within Washington State
National Parks
Within federal public lands (the National Forests, National Parks and BLM lands) the situation is a little more muddied, additionally depending on the nature of who has jurisdiction. Within the State of Washington, National Parks (such as Olympic National Park, Rainier National Park, etc.) retain Exclusive Jurisdiction by the federal government to where state and county laws are not enforceable or applied by local law enforcement agencies. Although there is no federal prohibition against nudity, National Park Superintendents are empowered to set rules prohibiting nudity within their park boundaries, enforceable by Park Rangers.
Such is the ongoing up and down situation at Playlinda Beach within the Canaveral National Seashore in Florida wherein the Park Superintendent has been influenced to pass prohibitions against nudity by Brevard County Commissioners. National Parks/Seashores and Monuments are heavily visited places and like it or not, public nudity is frowned upon and if it becomes a problem, will have prohibitions made in the form of 'rules'. Some areas are set aside, or designated. Within our Olympic National Park, it is accepted that nudity will happen at Olympic Hot Springs and therefor a sign warning of the clothing-optional nature of the springs has been posted. I have never heard of a nude soaker being cited up at those hot springs.
The upshot, in National Parks, is to only get nude in specifically designated clothing-optional areas . . . or deep in the wilderness where the matter is moot.
BLM Lands
Bureau of Land Management lands (under the Interior Department) also retain exclusive jurisdiction over public domain lands under their control, although typically they have not made any 'rules' addressing public nudity within the areas they control. Federal land, wherein the federal government has Exclusive Jurisdiction, is not subject to the enforcement of the laws of States or Counties by local law enforcement personnel. Federal rangers enforce the law, including state laws assimilated as appropriate.
The Assimilative Crimes Act
*Image is a citation written by a Federal Park Ranger pursuant to Title 18 (13)USC for violation of NY State Penal Code (245.01-Public Exposure (Nudity)). It is an example of the use of the Assimilated Crimes Act. No, it's not mine.
Let's muddy this all up a little bit more. In areas where the federal government exercises exclusive jurisdiction, the Assimilative Crimes Act allows the feds to to charge you with an federal offense under Title 18 for violation of state law (typically used for motor vehicle violations on federal park and forest roads).
TITLE 18, Part 1, Chapter 1, § 13. Laws of States adopted for areas within Federal jurisdiction
National Forests
National Forests in the State of Washington retain 'concurrent jurisdiction' between the federal government and the state . . . which means that National Forest land within the boundaries of a county is subject to state law. National Forest Regions (of which the northwest (Washington and Oregon) is in Region 6) can also publish rules prohibiting activities, including nudity. So far, there is no Forest Service rule prohibiting nudity within the National Forests in Region 6. However, next door in Idaho, of which the southern portion is in Region 4, there is a Rule prohibiting nudity in the National Forests of that region.
Since the state retains concurrent jurisdiction, the Forest Service typically contracts 'cooperative law enforcement agreements' with counties to patrol and enforce state law within national forest land. King County, for instance, has a Cooperative Law Enforcement agreement with the Mt Baker/Snoqualmie National Forest in which a part-time deputy patrols the Forest Service roads and trailheads during the prime hiking months (May - Oct). If you are observed nude by a King County deputy at a trailhead on National Forest land you will be approached. If there is a complaint (perhaps called ahead by cellphone), you could be cited under State statutes . . . usually 'indecent exposure'. Since the jurisdiction permitted is between the State and the Federal government, local law enforcement officers can only enforce state laws; not local county ordinances.
Does this mean I can't hike nude?
Not at all! Just use some commonsense when hiking. Local sheriff's checking the forest service roads and the trailheads under a cooperative LE agreement are not going to hike any respectable distance up a trail unless there is compelling reason to do so. They are patrolling to insure safety on the back roads and trailheads . . . while we enjoy the back-country. If there is a serious crime reported in the wilderness (the Mt Pilchuck murders in July of 2006, for example) you can expect deputies to be all over the trail. But they 'ain't' gonna hike in there to arrest a hiker enjoying the wilderness au'natural . . . unless there are complaints.
Most people in the backwoods don't care . . . or have skinny-dipped or hiked nude themselves. It's a mindset of the type of people who like to get more than a few miles into the forests and mountains . . . easy-going, let others be themselves. Most rangers take their jobs because they are of this same persuasion. At Olympic Hot Springs a Parks LE Ranger and his wife are frequent nude soakers in the springs. Rangers have more pressing jobs to deal with than naked hikers.
But Which Trails?
I'm not telling you to go out and test that defense (well, one, I'm not a lawyer). Just stating that this is how we need to approach the conundrum of simple nudity versus those who get nude in public for sexually-explicit purposes. It is our job as nudists to educate our politicians and law enforcement departments of the difference between these two mutually-exclusive activities; gaining wider acceptance of our lifestyle.
State Parks
Public nudity is specifically prohibited within Washington State Parks under an overriding state interest and authority of the statute creating the state park system.
WAC 352-32-100, Disrobing
State DNR Lands
The story behind Washington State Department of Natural Resources (DNR) land is less clear. The WAC 332-52 (Washington Administrative Code) does not address nudity on DNR lands, leaving state statute to apply . . . the Indecent Exposure statute RCW 9A.88.010.
Federal Lands within Washington State
National Parks
Within federal public lands (the National Forests, National Parks and BLM lands) the situation is a little more muddied, additionally depending on the nature of who has jurisdiction. Within the State of Washington, National Parks (such as Olympic National Park, Rainier National Park, etc.) retain Exclusive Jurisdiction by the federal government to where state and county laws are not enforceable or applied by local law enforcement agencies. Although there is no federal prohibition against nudity, National Park Superintendents are empowered to set rules prohibiting nudity within their park boundaries, enforceable by Park Rangers.
Such is the ongoing up and down situation at Playlinda Beach within the Canaveral National Seashore in Florida wherein the Park Superintendent has been influenced to pass prohibitions against nudity by Brevard County Commissioners. National Parks/Seashores and Monuments are heavily visited places and like it or not, public nudity is frowned upon and if it becomes a problem, will have prohibitions made in the form of 'rules'. Some areas are set aside, or designated. Within our Olympic National Park, it is accepted that nudity will happen at Olympic Hot Springs and therefor a sign warning of the clothing-optional nature of the springs has been posted. I have never heard of a nude soaker being cited up at those hot springs.
The upshot, in National Parks, is to only get nude in specifically designated clothing-optional areas . . . or deep in the wilderness where the matter is moot.
BLM Lands
Bureau of Land Management lands (under the Interior Department) also retain exclusive jurisdiction over public domain lands under their control, although typically they have not made any 'rules' addressing public nudity within the areas they control. Federal land, wherein the federal government has Exclusive Jurisdiction, is not subject to the enforcement of the laws of States or Counties by local law enforcement personnel. Federal rangers enforce the law, including state laws assimilated as appropriate.
The Assimilative Crimes Act
*Image is a citation written by a Federal Park Ranger pursuant to Title 18 (13)USC for violation of NY State Penal Code (245.01-Public Exposure (Nudity)). It is an example of the use of the Assimilated Crimes Act. No, it's not mine.
Let's muddy this all up a little bit more. In areas where the federal government exercises exclusive jurisdiction, the Assimilative Crimes Act allows the feds to to charge you with an federal offense under Title 18 for violation of state law (typically used for motor vehicle violations on federal park and forest roads).TITLE 18, Part 1, Chapter 1, § 13. Laws of States adopted for areas within Federal jurisdiction
National Forests
National Forests in the State of Washington retain 'concurrent jurisdiction' between the federal government and the state . . . which means that National Forest land within the boundaries of a county is subject to state law. National Forest Regions (of which the northwest (Washington and Oregon) is in Region 6) can also publish rules prohibiting activities, including nudity. So far, there is no Forest Service rule prohibiting nudity within the National Forests in Region 6. However, next door in Idaho, of which the southern portion is in Region 4, there is a Rule prohibiting nudity in the National Forests of that region.
Since the state retains concurrent jurisdiction, the Forest Service typically contracts 'cooperative law enforcement agreements' with counties to patrol and enforce state law within national forest land. King County, for instance, has a Cooperative Law Enforcement agreement with the Mt Baker/Snoqualmie National Forest in which a part-time deputy patrols the Forest Service roads and trailheads during the prime hiking months (May - Oct). If you are observed nude by a King County deputy at a trailhead on National Forest land you will be approached. If there is a complaint (perhaps called ahead by cellphone), you could be cited under State statutes . . . usually 'indecent exposure'. Since the jurisdiction permitted is between the State and the Federal government, local law enforcement officers can only enforce state laws; not local county ordinances.
Does this mean I can't hike nude?
Not at all! Just use some commonsense when hiking. Local sheriff's checking the forest service roads and the trailheads under a cooperative LE agreement are not going to hike any respectable distance up a trail unless there is compelling reason to do so. They are patrolling to insure safety on the back roads and trailheads . . . while we enjoy the back-country. If there is a serious crime reported in the wilderness (the Mt Pilchuck murders in July of 2006, for example) you can expect deputies to be all over the trail. But they 'ain't' gonna hike in there to arrest a hiker enjoying the wilderness au'natural . . . unless there are complaints.
Most people in the backwoods don't care . . . or have skinny-dipped or hiked nude themselves. It's a mindset of the type of people who like to get more than a few miles into the forests and mountains . . . easy-going, let others be themselves. Most rangers take their jobs because they are of this same persuasion. At Olympic Hot Springs a Parks LE Ranger and his wife are frequent nude soakers in the springs. Rangers have more pressing jobs to deal with than naked hikers.
But Which Trails?
- Consider the popularity of the place you want to hike. If it is very popular (say the Tonga Ridge Trail if it ever reopens), then you are going to run into the urban hikers who transplant their city thinking into the woods once or twice a year.
- Is the trail popular for families with children? Parents get very protective around their children. Likewise, do not hike nude through a campground where others may be suddenly startled.
- Hike on a weekday. Trails get less use on a weekday and you can usually tell at the trailhead if there is anyone else on the trail ahead of you.
- Avoid 'loop' trails and those trails with trailheads at both ends. You're less likely to come upon a hiker from the opposite direction.
- Wait until you are well on the trail before stripping down. The problematic people will not hike much more than a couple of miles before turning around. Try to avoid hiking nude from the trailhead unless you are reasonably sure you have the trail (and the trailhead) to yourself. Consider that the Forest Service is considering installing cameras at popular trailheads to cut down on vandalism.
- Hike with your senses attuned for approaching hikers. Popular trail and the sight-distance ahead is suddenly gone? Consider putting on a pair of shorts . . . at least until you can see where you're going on the trail ahead.
- Confronted? Grin and Bare It. Most people don't care. Many wish they had the guts to hike nude. Some will even strip down the moment you pass them and enjoy nature, likewise.
So get out there and get nude. Quit worrying so much. Just use commonsense.
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