During the recent debate about a nudity ordinance in Boulder -- one enlivened by the controversy over topless gardener Catharine Pierce -- Judd Golden, spokesman for the Boulder ACLU, frequently urged city council members to wait to find out what kind of public nudity bill would emerge from the Colorado legislature before acting on their own.
That measure is continuing to make progress. But how might it be applied? A report prepared in advance of the Boulder vote provides more than a few clues.
Council member Ken Wilson imagined a series of scenarios -- everything from standing naked near an elementary school to a swimmer accidentally losing his suit after a dive -- and reps from the Boulder city manager's office did their best to determine whether they'd result in an indecent exposure citation, a public nudity beef or nothing worse than pained expressions. Here are their (often hilarious) guesses:
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Question: The examples are not in exact order, but attempt to get at a range of cultural and social issues associated with public nudity. Provide your opinion about which situations would get an Indecent Exposure ticket if there was no nudity ordinance, and which would get an Indecent Exposure ticket and which a public nudity ticket if both were available.
Answer: As with any ordinance or law, they cannot be written to cover every situation or circumstance. This is why police and prosecutors must use their knowledge and experience in making decisions on appropriate charges, if any, in a variety of scenarios. The law must always rely on the reasonable, common sense judgment of officers, prosecutors, and ultimately judges in how any law or ordinance is applied.
As it relates specifically to the proposed nudity ordinance, officers would be expected to use common sense and discretion to properly apply the law, just as they do with any other ordinance. As to whether officers would charge the state Indecent Exposure law or the city nudity ordinance to each situation would depend on the final language of any ordinance and the totality of the circumstances in each case. As such, it is anticipated that an officer might respond to the stated scenarios with limited details in the following manner:
a. A person exposes himself in front of an elementary school when children are present.
Indecent Exposure -- intentional exposure to children, thus concern over being a possible pedophile.
b. A person stands naked on a street corner near an elementary school when children are in the vicinity.
Indecent Exposure -- same as above.
c. A person jogs naked past an elementary school when school is in session.
Could be either, depending on more specific details such as did he or she just happen to jog past the school; is there evidence it was done intentionally to "affront or alarm" the kids?
d. A person jobs naked down a residential street during daylight hours.
Could be either, depending on more specific details such as when it happened; were there any other people to see the person; is there evidence that it was done to intentionally "affront or alarm" other people?
e. A person walks naked down the Pearl Street Mall during business hours.
f. A person jogs naked in a residential neighborhood or by a school during hours of darkness.
g. A person walks naked down the Pearl Street Mall at night when few people are there.
h. A person swimming at the Reservoir takes off his swim suit and leaves it off as he gets out of the water, casually walking among families who are on the beach.
i. A person swimming at the Reservoir loses his swim suit while swimming and must exit the water naked.
No charges -- accidental.
j. A person diving off a diving board at a pool loses his suit on entering the water. He does not put his suit on, but climbs out of the water with his suit off and sits on a pool chair.
Would probably depend on his reason for just sitting there. With valid reason, no charges; without some valid explanation for not trying to cover up; public nudity.
k. A person diving off a diving board at a pool loses his suit on entering the water. He puts his suit on while in the water.
No charges -- accidental.
l. A person walks into a council business session naked and sits quietly in the audience.
m. A person walks into a council study session naked and sits quietly in the audience (no TV).
n. A young person streaks at a high school or college football game.
o. Naked pumpkin runners streak down the Mall, unannounced, during business hours.
p. Naked pumpkin runners streak down the Mall, unannounced, at midnight when every few people are there.
q. Naked pumpkin runners streak down the Mall on Halloween, drawing 10,000 people to the Mall.
r. A person sunbathes naked in front of his house, in plain view of people walking with their children to school.
Indecent Exposure if there was a belief he knew or should have known kids would be walking by and that the exposure would likely cause affront or alarm. Otherwise public nudity.
s. A person sunbathes naked in his backyard, surrounded by chain link fence, in clear view of the neighbor's children in the houses next door.
Possibly Indecent Exposure if the person knew children were present and it was in a manner likely to cause affront or alarm. Under the proposed municipal ordinance, no violation would have occurred as neither the nude person or children were on public property at the time.
t. A person sunbathes naked in his backyard, surrounded by a fence that is not easy to look over or through.
No charges -- the person is not intentionally exposing himself to others and is not easilyi visible unless someone goes looking.