Obscene exposure – Indecent Exposure – Wilful & Obscene Exposure
The offence of obscene exposure is found in s5 of the Summary Offences Act 1988 (NSW). It states that ‘a person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person’. The maximum penalty for this offence is 10 penalty units (fine) or six months’ imprisonment. It is important to note that a criminal conviction for this type of offence may impact on potential job prospects in the future, given that staff in certain industries (such as teaching or government officers) cannot have a criminal history of this calibre of offence.
To sustain a conviction, the prosecution must prove beyond a reasonable doubt that you had the requisite intention to expose yourself, and that it was in or within the view of a public place or school. As this is a summary offence, the matter will be heard and finalised in the Local Court.
Exposure in the context of the Act refers to the revealing of your genitalia in a public place. This can include exhibitionism or public nudity, and there is no requirement for a sexual act to be performed. Examples range from streaking at a public sporting event to flashing genitalia to a partner in a public place. A public place for the purpose of this section is taken to mean a place that is open to or used by the public. It is not necessary for someone to have seen the exposure, but instead the focus is on whether the offender has or should have a reasonable belief that others could see the transgression. This law is based on the belief that obscene exposure goes against accepted community standards.
A significant part of the offence is the accused having the requisite mental element, or mens rea, to commit the offence. This means that the person exposing their genitalia must do so with intent. Accidental exposure due to a wardrobe malfunction does not fall under s5, as the exposure was not done on purpose.
Penalties for obscene exposure vary depending on the circumstances of the offence. Aside from the 10 penalty units or six month imprisonment discussed above, there is also the chance that the court may order counselling or other conditions (referred to as an ICO or intensive correctional order), a suspended sentence (meaning the period of imprisonment is suspended and a good behaviour bond is entered into), a community service order, a good behaviour bond, or a Section 10 dismissal of conviction. Sentencing depends on the facts of the case, its severity, and whether there are any aggravating or extenuating circumstances. This could include the actual or possible witnessing of the act by a child or person under 16 years.
Obscene exposure can also relate to other offences, such as acts of indecency, depending on the circumstances of the exposure. These two terms are often discussed together and can be considered to allude to similar behaviour, but in their specifics refer to independent charges. In September 2015, a man was charged with obscene exposure and committing an act of indecency with a person under the age of 16 years when he exposed himself to a 15 year old girl at a park in Maitland. An act of indecency pursuant to s61N of the Crimes Act 1900 (NSW) concerns something that goes against community standards, such as exposing your genitals to a person under the age of 16 years, and can incur an imprisonment period of 18 months or 2 years, depending on the age of the person to whom the act of indecency was directed.
The use of the phrase ‘wilfully and obscenely expose his or her person’ in the statutory provision of s5 of the Summary Offences Act 1988 (NSW) has been held by the courts to mean the exposure of the genital area of either a male or female. In the case of R v Eyles, this was affirmed as meaning the accused’s penis, and generally refers to genitalia, with the buttocks and female breasts remaining a subject for review.
This 1997 case of R v Eyles  NSWSC 452 also contains an explanation of what is meant by ‘in or within view from a public place or a school’, as this matter concerned a man accused of masturbating while standing in his own front garden and behind a white picket fence. The complaints of obscene exposure arose from people who had been driving past, who stated that while they could not see his genitals, the way the accused man was acting suggested that this is what he was doing. Due to the height of the fence and the fact that the man was only wearing a t-shirt, it was held on appeal that this was an example of obscene exposure within view of a public place, since people who were using the public area could potentially see the offending conduct.
Given that the law is clear regarding the exposure of genitalia in public, behaviour on nudist beaches could be called into question on this basis. However, the Local Government Amendment (Nude Bathing) Act 1996 (NSW) states that nude bathing cannot be prohibited if the conduct occurs at one of the listed designated beaches. Therefore, nudity on these designated beaches will not incline a charge of obscene exposure, providing that the council’s regulations are abided by.
Another instance where there may be public exposure of private body parts is breastfeeding, but the law is clear that this is not an issue of obscene exposure, and it is against the law for discrimination to occur on the grounds of breastfeeding.
Defences to a charge of obscene exposure can include duress or necessity.
If you have been charged with obscene exposure, or believe that you may be charged, it is in your best interests to contact our experienced lawyers. Your freedom and reputation deserve the best representation, and our Sydney Criminal Lawyers have the skills and experience to get you the desired result.