APPENDIX 13
Memorandum submitted by Mr Mark A Nisbet,
Editor, H&E Naturist
I am the editor of the monthly naturist magazine
formerly known as Health and Efficiency but now called
H&E Naturist. The magazine has been in continuous publication
since 1899 making it one of the oldest magazines in the country.
Myself and many of my readers have followed
the proposals for the reform of sexual offences legislation since
the original Setting the Boundaries document produced by
the Home Office some time ago. As naturists, our interest was
focused on what proposals emerged regarding any new definition
of the law pertaining to the offence of indecent exposure, bearing
in mind that it was determined by the Home Office Review Team
that both the Vagrancy Act (1824) and Town Police Clauses Act
(1847), erroneously in my view, "required updating."
Today, these laws occasionally prosecute naturists.
We participated further in the consultation
when the relevant proposal, known as Recommendation 54, was announced.
We opposed the wording and took issue with the thinking behind
it. Later, the Home Office recorded some 452 individual responses
to this proposal (by far the largest to any of the other recommendations)
and, I'll wager, not one a "standard letter" manufactured
by any organised dissenting group. The national association for
naturists in the UK, the Central Council for British Naturism,
also made a lengthy submission.
Likewise, with the appearance of the Protecting
the Public document the Home Office again found them with
a fuller mailbag than usual. This was in response to the nebulous
wording and import of the indecent exposure proposal at Ch.6 Para
76 of Protecting the Public.
With the appearance of the Sexual Offences Bill
(2003) in the House of Lords, naturists are again expressing their
dismay at the proposed wording of Clause 70.
While we feel that the wording in the Vagrancy
Act and Town Police Clauses Act is perhaps archaic, both clearly
define the actus rea and the mens rea behind a successful
prosecution for the offensive (and reprehensible) act of indecently
exposing the penis. Instead, with Clause 70 we have a vague actus
rea—simple public exposure of the genitals—and
a mens rea that has seemingly disappeared. According to
the rather muddled Explanatory Notes to Clause 70 accompanying
the Sexual Offences Bill we may even have an "invisible"
offence!
"It is not necessary for A's genitals to
have been seen by anyone or for anyone to have been alarmed or
distressed. For example, if a person exposes his genitals to some
passers-by, he may (depending on his state of mind) commit the
offence regardless of whether they actually see his genitals or
whether they have been alarmed or distressed by seeing them."
With the current wording of Clause 70 there
is the very real risk that the public aspects of social nudity,
that is naturism, will become effectively criminalised. I must
point out that only a very small proportion of the UK's naturists
are members of private naturist clubs. The vast majority of the
UK's 1.2 million naturists (National Opinion Poll figure from
a survey carried out in January 2001) pursue their naturism in
the great outdoors—in public places, that is on beaches,
in the countryside and in their gardens.
As it stands Clause 70 does not add anything
to the existing legislation used to prosecute indecent exposure
and it fails to put right any anomalies in the current laws because
successful prosecutions for indecent exposure under the Vagrancy
Act, Town Police Clauses Act and the Public Order Act, Section
Five are regularly made in the courts today.
If we are to proceed with a new indecent exposure
law then please let us call it that—indecent exposure—and
not simply "exposure."
Then I ask the committee to consider redrafting
Clause 70 so that innocent social nudity is not criminalized.
I am not a lawyer but I understand that words that indicate the
intent behind the public exposure of the penis is what is required
if the law is to have any meaning—and any fairness in its
application in society against the perverse elements amongst us.
If the exposure is sexual, that is if the person
is exposing himself to others for sexual gratification and/or
to deliberately shock members of the public, be they male or female,
then this is surely a workable definition for the offence of indecency.
Merely lying on a beach sunbathing or reclining in the garden
does not have behind it intent to offend by the sunbather.
Those minds cleverer than mine responsible for
drafting the law may also want to look at replacing Victorian
euphemisms such as "lewd" and "insult a female"
with more practical words and phrases such as: erect, genital
manipulation, coarse or lascivious words and body movements, and
so on. Many naturists feel that these are necessary in order to
pin down the required wording and to make understanding the law
a little simpler for many people.
I respectfully submit the above observations
to this committee for their consideration.
February 2003
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