Thursday, December 31, 2009

Commentary on WNBR Indecent Exposure Citation

(Note: I am not a lawyer and I am not giving legal advice . . . the following is merely my take and understanding of the dynamics of the law as I understand it. If you find yourself in similar circumstances, please find yourself competent legal representation.)

"... Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. ..." 
van Mill, David, "
Freedom of Speech", The Stanford Encyclopedia of Philosophy (Winter 2009 Edition), Edward N. Zalta (ed.), 


Nude bicycle riding has become a "well-established tradition" in Seattle and many other cities around the U.S. and the world. It is understood and interpreted as a form of "symbolic protest." The Seattle Municipal Code (SMC) does not have a specific prohibition against public nudity. Portland does and judges there have ruled in favor of defendents in dismissing indecent exposure charges based on the above traditions and First Amendment Rights.

The Seattle WNBR has been going on for years. Occassionally, riders get threatened, sometimes they get cited . . . usually for not dressing when ordered to do so by police officers, a Disorderly Conduct charge. Riders are generally left alone and often given a police escort to safely control the ride route. Those who do get cited have the charges quitely dropped after-the-fact . . . an acknowledgement of the difficulty of prosecuting Indecent Exposure charges when there has been no lewd of obscene conduct.
(Image from Seattle's 2004 World Naked Bike Ride)

Another example of tradition and acceptance within Seattle has been the participation for years of the body-painted nude bicycle riders in the annual Fremont Solstice Parade. Riding nude in the parade has become a fact 'accompli. In 1998, SPD officers arrested two naked cyclists in the Fremont Solstice Parade. The city attorney at that time declined to prosecute the pair because they hadn’t violated the indecent exposure law. Police since have not bothered to attempt to stop the tradition of nude cyclists in the parade . . . the thousands of families and children lining the parade route love them and applaud when they go by. (Personal experience and participation, 2002-2009; image from the 2008 Fremont Solstice Naked Bicyclists)

The former Seattle Superintendent of Parks had this to say to naysayers and critics of permission to ride through Seattle Parks by WNBR participants: "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 complaint, dated 12 July 2006, about World Naked Bike Ride Seattle.

Former Police Chief Kerlikowske had this to say to his subordinates about circulating rumors and allegations that police would arrest nude participants in the 2008 Gay Pride Parade:
"Washington's indecent exposure law makes it a misdemeanor to 'make an 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.' In other words, there must be lewd or obscene behavior for an officer to take action." [emphasis mine]

Chief Kerlikowshe goes on in the same communique to say,
"In order for the police to make an arrest, we must have witnesses currently in the public place where the nudity is occurring [sic] who must make a complaint. These witnesses must be willing to appear in court. Also in order to prosecute, the burden is on the government to prove the the offender was knowingly aware that their conduct created alarm and offense of others."

The Law

Since Seattle has no public nudity prohibition on the books of the Municipal Code (nor does King County have an anti-nudity ordinance), Daniel was cited under the state Indecent Exposure statute . . . RCW 9A.88.010 which I quote below:

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 successfully prosecute, all the elements of the statute must be met. There has to be intention to expose with the knowledge of likely affront, the exposure has to be open AND obscene, and there has to be someone who was affronted or alarmed at the exposure.  Four required elements to sustain the charge.

Element #1: Someone Must Complain
As Chief Kerlikowske has stated, and the King County Sheriff's Department spokesperson has reinteratted in email exchanges, there must be someone complaining and that someone must be willing to appear in court to testify to the complaint. It is not sufficient for a law enforcement officer to be the one affronted or alarmed to sustain a complaint. 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 [or police officer] 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."

Element #2: Intention and Knowledge
Intention is always difficult to prove in court; the prosecutor must assess and prove the defendant's alleged state of mind. In my reading of the statute, the bar is raised even higher because I read the statute to say the cited 'had the intention to obscenely expose him or herself, knowing it might cause reasonable affront or alarm'. It's not just the intention . . . it's intention with knowledge.

Element #3: Nude? Or Nude and Obscene?

"Public nudity in itself is not illegal." Former Seattle Parks Superintendent Ken Bounds
"... there must be lewd or obscene behavior for an officer to take action." Former SPD Chief R. Gil Kerlikowske

Arrests and citations for indecent exposure rarely hold for simple nudity. Why? Because of that one required charging element . . . the exposure must also be obscene.

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.]"

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'.  Without obscene exposure, as defined and clarified by the Supreme Court, how can a charge of Indecent Exposure be sustained?

Where Constitutional First Amendment Rights to Free Speech (and Expression) are involved, prosecutors and the courts must step very carefully to avoid infringing on those rights.  Though there are those who may feel affronted . . . or alarmed . . . or in some way offended by someone's exercise of their Constitutional Rights, the Supreme Court has affirmed that those Rights are paramount and important to protect over mere offense or harm.

[For an excellent discussion of John Stuart Mill's Harm Principle and Joel Feinberg's Offense Principle as they relate to free speech read the treatment here.]

...there is no evidence of harm that is more than grossly speculative. All that the trial judge had before him was some evidence indicating specific individuals' lack of acceptance of the appellant's choice of clothing. There was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her ...  there was no harm in what was done ..." Criminal law study papers: A REVIEW OF THE LAW OF INDECENCY AND NUDITY IN CANADA; A lengthy discussion on the Harm Principle and Nudity in Canada; a good read to understand how Canadians approach public nudity. [emphasis added]

There is no doubt that the World Naked Bike Ride was promoted as an exercise of Free Speech and Expression and that many forms of simple, nonsexual public nudity are expressions of our desires to see the lifestyle accepted and venues allowed.  Much of public nudity is made to express one's beliefs in a more natural existence on this planet . . . surely forms of First Amendment Rights to Free Speech and Expression!

Element #4: Was Someone Offended?

What is missing from the notice that Daniel received? Who was offended? When and where were they offened? Why was Daniel cited and not the others? I suppose those questions will come out in court but I find it awfully disingenious of the city and inconvenient for the charged to prepare a defense in advance (or even decide a plea) without the knowledge of the essential charging elements of the citation (including the identity of the complainant who may have another agenda to pursue . . . or may not have even seen Daniel but an different rider near the back of the pack).

Why Daniel? Was it perhaps because he was leading the ride . . . the only person identifiable? There must be a complainant and that person must be able to testify that he or she was affronted and alarmed at a specific open and obscene exposure . . . the who, what, when, and where.

Are they alledging Daniel broke the law specifically. Or are they complaining because they saw someone naked . . . perhaps not Daniel at all. According to the recollection I received, the police did not confront the riders until some time later at an entirely different location. In my mind, I have to wonder if Daniel was cited because he identified himself as the leader of the group. The specifics of the complaint are missing and that makes this charge suspect in my mind.

I would hope that Daniel fights this charge all the way. I disagree with much of the activism of this type of nudity but we cannot let precedent be set to reinterpret what the state's indecent exposure law was meant to cover . . . and simple, innocent nudity is not one of them.

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