02 December 2012

The bare necessities

Hands-up if you’re a nudist? OH GOD PUT THEM BACK DOWN AGAIN! I didn’t think that through. New game! Gesture with your elbows, but do not in any way move your hands, if you’re a nudist? Okay. Listen up, wrinklies, because I’ve invented a thing called “clothing”. This will allow people to be naked, but others will not be able to see it unless they’re underneath the clothes.
- PC Gamer, 1 December 2012

Yes, it definitely must've been a slow news day yesterday in Wellington, because the Dominion Post's front page story featured naturist Andrew Pointon, who recently had his appeal against a December offensive behaviour charge upheld. He had been charged for nude jogging in a forest near Tauranga last August; a woman using the bike path Pointon was running on was surprised and offended by his lack of clothing and complained to police, and he was charged by police three days later at the same location. Justice Paul Heath, according to the Dominion Post, upheld Pointon's appeal and compared the naked jogging case with a hypothetical scenario of two patched gang members strolling along the same track:

It would not be surprising for a person in the position of the complainant to be concerned and discomforted by their presence, and even to feel threatened. However, on any view, their behaviour would  not be regarded as offensive behaviour. Should the sight of a naked man, in the circumstances in which the complainant found herself, be treated any differently? I think not.

Pointon cited his appeal success as a victory for libertarianism, adding, 'It's just another lifestyle and I want respect for it'.

It would be interesting to be exactly sure what offence Pointon was charged with. I presume it was an offence under the Summary Offences Act 1981, which is where a whole load of miscellaneous naughtiness is dealt with. He might have been charged under section 27, indecent exposure, but given the potential imprisonment involved that's probably reserved for more serious cases, i.e. serial flashers. Presumably he was charged under section 4, offensive behaviour or language, which is a more nuisance-level charge. Under that section, 'every person is liable to a fine not exceeding $1,000 who, in or within view of any public place, behaves in an offensive or disorderly manner'. Simple, right? 

However, it all depends on how you define offensive behaviour, which is why judges have a hard job. Last year an offensive behaviour conviction for activist Valerie Morse, who burned a New Zealand flag at an Anzac Day dawn service in 2007, was quashed by the Supreme Court:

Wellington District Court judge Oke Blaikie found offensive behaviour to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person. He considered a tendency to disrupt public order was not required. But the Supreme Court thought otherwise, ruling unanimously that offensive behaviour must give rise to a "disturbance of public order". Because the district court proceeded on a wrong basis of law, the conviction was thrown out.
- Clio Francis, Dominion Post, 7 May 2011

The Supreme Court judgement in Morse's case seems to set a relatively high barrier for offensive behaviour charges, and it would be interesting to learn if any successful prosecutions have occurred since that judgement. Personally, I think Morse's actions were calculatedly offensive, but she should be free to burn a flag if she wishes to, despite the insensitivity of the action and the offence this might cause. Her actions might have annoyed and upset onlookers, but they hardly endangered the safety of public order by ensuring that those present were (in the words of Justice Tipping) 'substantially inhibited in carrying out the purpose of their presence at the place where the impugned behaviour is taking place'. New Zealand society is sufficiently robust and tolerant to permit actions like Morse's, and while we may not agree with attention-seeking protests, it's better that these actions are out in the open and judged on their own merits (or lack thereof).

Having made a case for free speech, it is interesting to debate whether naturism or nude jogging is analogous to free speech. Of course people should be able to live however they wish - we live in a free society. But our collective freedom is always limited in part by the desire of other citizens for quiet enjoyment of their own way of life. Naturism has been around for decades, and with time we have evolved a reasonable balance in which the relatively small number of devotees can enjoy the freedom to take their clothes off in public but only in certain areas. This compromise works well, because generally everyone is aware where these areas are, and can avoid them if they wish to. In most other areas, therefore, we rely on people to leave their clothes on in public. 

This delicate balance is disrupted by cases like Mr Pointon's, in which public nudity is taken out of its expected environment. The example cited by Pointon's lawyer, of the legal Boobs on Bikes parades organised by a sex industry promoter, just goes to prove the point. New Zealand society tolerates Boobs on Bikes not because it is a shining example of free speech, but because if you don't like Boobs on Bikes parades, they're pretty easy to avoid. Just don't go into town that day and you won't see any mammaries on motorcycles. Mr Pointon's brand of naturism is harder to avoid because he is mobile. In effect, he is attempting to make forest trails like the one he was arrested on into naturist reserves. Perhaps that's a laudable goal, I don't know, but it definitely changes the equation in favour of clothes-free activity in areas outside 'traditional' naturist locales. 

Going back to Justice Heath's scenario of patched gang members, perhaps this was more convincing in the context it was delivered, but on the face of it the analogy seems peculiar. Wearing a gang patch or uniform is not in itself a criminal act (notwithstanding recent efforts to ban them), and nor is it offensive. A woman happening upon two gang members on a forest path might be surprised and feel concerned for her own safety, but that's got nothing at all to do with offensive behaviour because the court case was not just about the aspect of surprise. The alleged infringement of the law is generated primarily by the behaviour (naked jogging), not the aspect of surprise. The fact that Pointon was running would have added to the suddenness of the encounter, but would the woman's reaction have been different if Pointon had been walking, or had stopped for a rest? (Probably not wise - it was August after all. Best to keep moving to avoid hypothermia).

Clearly this is a matter of context. If Pointon had been going for his naked runs through the middle of Tauranga I believe his appeal would have been far less likely to succeed, because far more people will have seen him and a reasonable number of them (perhaps a minority, but still a fair few) would probably have been offended by the sight of him. The isolation of the forest track plays a part, in that there would likely be few people around to see. So is the test that public nudity like in this case is a minor nuisance, but a nuisance that is magnified if more people are exposed to it? (Pun unintended). No, because plenty of people are exposed to the Boobs on Bikes, and most of them have chosen to be. So they can, like, see boobs. (And bikes. But I'm guessing mainly boobs). It's the combination of surprise and an unexpected location of nudity that's the issue.

Perhaps Pointon should bear in mind that public nudity in an unexpected location is also the purview of flashers, who are often regarded as low-level nuisances but are potentially more serious cases with psychological problems that could lead to worse offences. It will be a fine line to tread if he wishes to advance his cause further. Either way, while we might salute Pointon for standing up for what he believes in, equally I think it should be acceptable to say that if I'm out for a casual stroll on a forest path I really, really, REALLY don't want to see anyone's junk. I mean, seriously? It's just a matter of good manners. Keep it to yourself, dude.
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