Indecent exposure laws in Australia: Exposing the obscene

by The Findlaw Team

Obscenity laws are quite fascinating due to the fact that what some may consider to be obscene or indecent can be influenced by the constitution of the individual, or the contemporary standards of decency in society. We’ve already covered whether the ‘f’ and ‘c’ words are obscene, so it’s only natural we should also look at the laws surrounding obscene exposure.

What actions are considered indecent or obscene in law?

Before delving further into the laws relating to obscene exposure, it’s perhaps useful to look at the common law definition which can be found in the comments of Fullagar J in R v Close [1948] VLR 445 (FC) at 463, where his Honour said (at 463):

“As soon as one reflects that the word ‘obscene’, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from Hicklin (1868) LR 3 QB 360 at 371, was not propounding a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal.”

Further context can be found in the judgment of Windeyer J in Crowe v Graham (1968) 121 CLR 375 where his Honour observed that the adjective ‘indecent’ has long been used in law to describe a number of offensive actions that denotes lewd behaviour. However, his Honour did remark that indecent may not always involve lewdness, stating that (at 390):

“Indecent exposure, indecent assaults involve lewdness. Indecent language does not... Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words, “against public decency and good manners”.”

Obscene exposure

Needless to say, all jurisdictions have laws criminalising obscene exposure, such as s 23(1) of the Summary Offences Act 1953 (SA) which states that a person will be considered to have behaved in an indecent manner: 

  • in a public place, or while visible from a public place, or in a police station; or
  • in a place, other than a public place or police station, so as to offend or insult any person.

Interestingly, a person may still find themselves in trouble for obscene exposure even if they are unseen, as the court in a joint judgment remarked in R v Benson; Ex parte Tubby (1882) 8 VLR (L) 2 (FC) (at 5):

“It is quite unnecessary to prove that the prisoner was actually seen by anyone on the highway when he was exposing himself; it is sufficient that he was in view and could have been seen by any person there."

The person must hold the intent to act obscenely

Similar to other criminal offences, a person must hold the intent to behave in an obscene manner, as Lowe ACL said in R v Towe [1953] VLR 381 (CCA) (at 382):

“[A]t least there is involved in the commission of the crime an intention on the part of the person charged to behave indecently to expose himself indecently, and, unless that intention is present, then the conduct would not amount to an offence of the kind charged. When I speak of an intention to behave in an indecent manner, of course I mean behave in a manner which an ordinary person would regard as indecent.”

His or her ‘person’ can mean a person’s bodily parts

Traditionally, reference to a ‘person’ in statute, meant penis, as was observed in Evans v Ewels [1972] 1 WLR 671. Asworth J, said (at 674): 

“It seems to me that any rate today, and indeed by 1824 the word “person” in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for ‘penis’.”

Obviously reference to the ‘person’ in old legislation has taken more of a gender neutral meaning with Gleeson CJ in R v Eyles [1997] NSWSC 452 (1 October 1997) (CCA), said “[t]he reference to ‘his person’, in the light of ordinary principles of statutory construction, preserved the gender neutrality of the offence.”

Hope that you’re now more exposed to obscene exposure laws. Apologies for the poor puns.


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