Conference moira::naturism

132.0. "Account of an indecent exposure trial" by MOIRA::FAIMAN (light upon the figured leaf) Wed Jan 25 1989 14:33

    I had the interesting experience yesterday of observing a trial for
    indecent exposure.  (I was present as a potential defense witness, but
    was never called.)  For those who may be interested, I'll describe the
    case and the trial.  Keep in mind that the case probably wasn't typical
    of anything . . .

    The case took place in New Hampshire.  (See note 109.1 for the text of
    the New Hampshire indecent exposure statute.)

    The subject of the case was an incident last summer in which two men
    were enjoying a local swimming hole in the nude.  The swimming hole has
    a long history of nude use, and is fairly well known locally as the
    town "skinny-dipping spot."  (At the base of a beautiful waterfall, it
    is also one of the major natural attractions in the town.)  Until about
    five years ago, it was pretty isolated, though technically on private
    property.  There is now a house quite near by, but the owner is very
    tolerant (of swimming in general and nudity in particular), and takes
    the attitude that just because he owns the site doesn't mean that it
    would be right for him to keep others from enjoying it. 

    A man from out of town, who was acquainted with the site, but not with
    its nude use, decided to bring his family there for a picnic and some
    swimming.  When he encountered the two nude men, he was extremely
    upset.  (One of the men covered himself immediately; the other one may
    have done so a couple of minutes later.)  Some heated words were
    exchanged, and the man and his family left.

    The man was so offended that he decided to file a charge of indecent
    exposure against the two swimmers.  The local police department
    apparently informed him that there was no case, but he insisted, and
    the police (reluctantly, we presume) agreed to prosecute.

    The complainant came to court with his wife, daughter, son-in-law, and
    two young granddaughters who had been with him.  When the case came to
    trial, he was called as a witness, and explained the events in detail.
    (It is worth mentioning that his recollection of some of the events,
    and particularly of the discussion that he had with the owner of the
    house there, contrasted strongly with the accounts that would have been
    presented by the defense.) 

    The defense attorney cross-examined the complainant, concentrating on
    (1) the fact that the only action of the defendants which he considered
    objectionable was their having been there in the nude (approximate
    quote: If you're outside with no clothes on, that's indecent exposure);
    (2) the fact that the defendants had no intention to offend anyone,
    were apparently surprised by his appearance there, and (one of them)
    dressed immediately when he appeared; and (3) the details of his
    discussion with the home owner.

    The prosecution then called a police sergeant who had done a "follow-up
    investigation" after the complaint.  Basically, he had driven around
    the neighborhood near the swimming hole to ask the residents whether
    they had any complaints.  One homeowner across the street had had no
    problems with nude bathers, and in fact his family enjoyed swimming
    nude there.  The only other person who was home was the person who
    owned the property with the swimming hole.  He wasn't especially
    enthusiastic about people swimming there (especially when the noise
    interferes with his enjoyment of his home), but wasn't very concerned,
    either.

    The cross examination produced this remarkable exchange (all quotes are
    my paraphrases -- the essence is correct, since I was taking notes, but
    I didn't get the exact words):

    Q.  How long have you been on the town police force?

    A.  Nine years.

    Q.  Were you surprised at this complaint about nude bathing?

    A.  Yes.

    Q.  Were you surprised at the complaint, or at the nude bathing?

    A.  At the complaint.

    Q.  Have you been familiar with such activity [nude bathing] having
	occurred there in the past?

    A.  Yes.

    Q.  How often?

    A.  Every weekend in the summer time.

    Q.  Have there ever been any complaints in the past?

    A.  No.

    Q.  Have you ever been called to render assistance here before?

    A.  Only to deal with [noisy parties] at night, or when parked cars
	obstructed the road.

    The prosecution then asked a couple more questions:

    Q.  One side of the stream is owned by [a private trust]?

    A.  Yes.

    Q.  Has [the caretaker for the trust] ever complained about use of the
	site?

    A.  Not that I can recall.

    Obviously, that pretty well finished the case.  The judge called the
    prosecution, the complainant, and the defense lawyer into his chambers
    for a conference.  On returning, he announced that:

	He is familiar with the site, it is spectacularly beautiful, he has
	been there often with his own children (clothed), and knows that
	the site is used for many things, including picnicking and nude
	bathing.

        It is not appropriate to level a charge of indecent exposure at
        someone just for having been standing around [in a secluded place]
        with no clothes on: indecent exposure is concerned with a history
        of such conduct, or when the public is endangered.

	Because of its history of use, the site has become semi-public,
	unless it is posted otherwise by its owners.

	He was placing the case on file without a finding.  He thought the
	complainant was rightfully offended, and he (the judge) was
	offended, but this was not the substance of a criminal charge.

	If the *police* wanted to pursue this conduct (i.e., crack down on
	the nude bathing) with the consent of the land owners, that would
	be their business.  [There doesn't seem to be any sign that either
	the police or the land owners are interested.]

    Placing the case on file without a finding means that the defendants
    are neither found guilty nor found not guilty.  (In effect, the case is
    discarded.)  The defense lawyer was very upset afterwards, feeling that
    the defendants were entitled to a full trial and a finding of not
    guilty; that it was simply wrong for the defense not to have been
    allowed to present its case, and for the defendants not to have been
    allowed to clear themselves; that the judge was avoiding the need to
    make a decision on a controversial subject; but that there was
    absolutely nothing that could be done about it.

    	-Neil

Let's just hope that this doesn't wrap things up :-).

/Mike