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PhotogLaw 101 - Indecent Exposure
Sixth in a series on laws affecting photographers and the models they work with. I'm an MM photographer and a licensed Texas attorney. For liability reasons I won't be giving any legal advice here - just some basic legal principles. Consult an attorney if you have any specific legal situations of your own. Remember that laws vary from state to state and country to country, and federal law may trump state/local laws. Warning - sexual offenses vary greatly from state to state and country to country. What follows are general legal principles and, where indicated, the law in my home state of Texas. EVEN BIGGER WARNING - If you make a mistake and are convicted of a sex-related offense, you may be required to register as a sex offender - possibly for the rest of your life. Definitely not a good career move. There are a number of different sexual offenses MM's should keep in mind - but I will assume that you are not involved in prostitution, explicit sexual conduct in public, or child pornography. Also, I will not be discussing obscenity laws and related Constitutional issues. If you do outdoor nude shoots, indecent exposure is probably the most likely criminal issue you will encounter. The key to understanding these laws is to focus on 1) what parts are being exposed 2) why are they being exposed and 3) who might be there to see the sexy parts. In Texas, indecent exposure is a misdemeanor and only covers exposing the anus or the genitals - so breasts and butts are OK! WooHoo! Other states have stricter laws - for instance the New York law includes exposing the nipple. The Texas law also requires an intent to sexually arouse some other person (this might even include persons who view the images after you post them online). This is a common element in a number of state statutes. So "wardrobe malfunctions" would probably not constitute an offense. Finally, to be convicted in Texas it must be shown that you were reckless about whether someone would see the model and be offended (this certainly excludes the photographer, assistants, escorts and MUA's). This last element can be addressed if you have an assistant/escort on the lookout and keep a robe handy. Other state laws require that a person actually see the model and find it offensive. Finally, bear in mind that although the statutes apply to the person who is exposing him or herself (the model) - other persons who knowingly assist the model in committing a crime can also be charged (the photographer and anyone else who might be present to assist). EDIT - I'm informed that the NY law does not apply to the nipples (but of course, if it's Mardi Gras you might have to throw her some beads). Feb 05 13 01:40 pm Link Defiantly some good things to keep in mind when shooting outdoor nudes. Thanks for the post. Feb 05 13 01:44 pm Link THIS WARNING BEARS REPEATING. EVEN BIGGER WARNING - If you make a mistake and are convicted of a sex-related offense, you may be required to register as a sex offender - possibly for the rest of your life. Definitely not a good career move. When you get charged with indecent exposure or something along those lines, bear in mind that it's usually a misdemeanor case that's going to be assigned to some 24 year old prosecutor who just got out of law school. They don't care if they're screwing your life up on a technicality, they want that win under their belt. Feb 05 13 02:21 pm Link Faces2Die4 Photography wrote: With due respect, this is incorrect. Feb 05 13 02:34 pm Link And I'll go ahead and supplement this very helpful OP with some California-specific details: Every person who willfully and lewdly, either: Cal. Penal Code § 314 Feb 05 13 02:46 pm Link Haseeb Omar Photo wrote: Understanding what you have said, it needs to be remembered that there are numerous city and county ordinances that ban public nudity in California. So, while the state law may be a lewd conduct law, go nude in Los Angeles and you will run into problems. Even San Francisco just passed an ordinance making it illegal to expose genitals in most public places (unless part of an organized event). Feb 05 13 03:07 pm Link salvatori. wrote: Yup. Feb 05 13 03:11 pm Link salvatori. wrote: Thanks Salvatori - I might have been looking at an outdated version of the NY law. Feb 05 13 03:18 pm Link Small Fruit Pits wrote: And I applaud that decision... Feb 05 13 03:18 pm Link Small Fruit Pits wrote: Thanks for the info. Feb 05 13 03:19 pm Link GPS Studio Services wrote: Excellent point, although I believe an infraction is technically a civil offense, not a criminal one. Feb 05 13 03:28 pm Link Haseeb Omar Photo wrote: It takes a certain type of low-life bottom feeder. Maybe they should be seeking wins against the many real criminals out there. Faces2Die4 Photography wrote: NY stricter than TX? Who would have ever thought. Feb 05 13 03:33 pm Link rp_photo wrote: It's usually more complex than that. You generally can't get a conviction without a complaining witness, and when there IS a complaining witness it's tough to toss a case out and not catch serious heat for it. Feb 05 13 03:58 pm Link I usually use a lightmeter so my exposures are pretty decent! Feb 05 13 04:01 pm Link GPS Studio Services wrote: Haseeb Omar Photo wrote: An infraction is a criminal offense that doesn't carry the possibility of jail time. A traffic ticket is an infraction but it is also a criminal offense, jut a very minor one. Feb 05 13 04:03 pm Link Haseeb Omar Photo wrote: With Liberals screwing us over in all levels of government, how great it would be if they acted Liberal in good ways such as tolerating nudity. Feb 05 13 04:03 pm Link rp_photo wrote: Yes. Liberals are the force behind the enforcement of draconian nudity laws. Feb 05 13 04:07 pm Link Vice and non victim crimes is a big business in a so called free country. Being nude a crime? A sex offence? Isn't there some real crimes they could be using tax payers hard earned bucks on? Sounds almost like a religious opinion. Separation of church and state? Oh No Mr Jones I don't want that cool-aid! Feb 05 13 04:33 pm Link Haseeb Omar Photo wrote: They should be the force behind rolling them back, along with Marijuana prohibition which IMHO is another "good" Liberal cause. Feb 05 13 04:42 pm Link rp_photo wrote: Hey, I'm with you man. I agree. But I don't think that liberals are what's keeping us from liberalizing our laws. I'd say PROBABLY conservatives are the ones clinging to, um, conservative values. Feb 05 13 04:46 pm Link Moderator Warning!
rp_photo wrote: With political trolls screwing over unsuspecting readers by posting off-topic troll posts, how great would it be if they kept their trolling out of the forums? Feb 05 13 09:03 pm Link Back to the OP, you should also bear in mind that there are other laws that might apply even if you avoid the indecent exposure rap, such as Disorderly Conduct, Creating a Public Nuisance, Disturbing the Peace, etc. Feb 06 13 04:12 am Link rp_photo wrote: In NY, we arrest everyone, drag them into court, make everyone spend thousands of dollars on legal defense, then typically drop the charges. Feb 06 13 04:47 am Link rp_photo wrote: You're just living in the wrong state, amigo... Feb 06 13 05:37 am Link salvatori. wrote: Right, but nudity alone does not equal indecent exposure. Feb 06 13 08:11 am Link rp_photo wrote: In the interest of balance and fairness, Liberals were behind the ruling permitting women in NY State to go topless. In interest of full disclosure, I am a Conservative. Feb 19 13 09:54 pm Link Rich Images wrote: I was posting this while the Nigerian scammer was posting the warning. I didn't see the Nigerian scammer's post until after I finished typing and clicked on reply. Sorry if I did something bad. Feb 19 13 09:58 pm Link Haseeb Omar Photo wrote: so basically photographers are guilty of a crime for taking pictures of a nude model in public Feb 19 13 11:10 pm Link salvatori. wrote: EDIT - I'm informed that the NY law does not apply to the nipples {NOT} Feb 19 13 11:19 pm Link salvatori. wrote: Be that as it may, you are asking a court to interpret the intersection of two laws, one allowing women to go topless in public and another that may well apply to your photograph of said woman in public. Feb 19 13 11:24 pm Link terrysphotocountry wrote: What do you mean "does not apply to the nipples"? Feb 20 13 12:03 am Link Small Fruit Pits wrote: terrysphotocountry wrote: What do you mean "does not apply to the nipples"? This is a twist that photographers must know about. The NY statute on indecent exposure originally read: § 245.01 Exposure of a person. A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment. After a 1992 court challenge the court limited the enforcement of that provision in respect to the F breasts including the nipples People v. Santorelli restricted the applicability of § 245.01. The Court of Appeals of New York ruled in 1992 that exposure of a bare female breast violates this law only when it takes place in a commercial context. As a practical matter, proper enforcement of this section can be a problem, since local enforcement agents are often unfamiliar with the case law that interprets the statutory language. Santorelli was a narrow ruling based on a very limited argument and set of facts. Not only is the tendency still to enforce on the basis of the original statute a potential problem, but if a model is being photographed topless [in public] the activity itself, and the photographer's promotion and participation in it [§ 245.02 Promoting the exposure of a person.], could easily be construe as a commercial context in which case the full original text of the statute might still be seen by a court to apply and be fully enforceable as written, and BOTH the model AND photographer could wind up being charged - - - and convicted. Feb 20 13 01:29 am Link studio36uk wrote: Small Fruit Pits wrote: terrysphotocountry wrote: What do you mean "does not apply to the nipples"? This is a twist that photographers must know about. The NY statute on indecent exposure originally read: § 245.01 Exposure of a person. A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment. After a 1992 court challenge the court limited the enforcement of that provision in respect to the F breasts including the nipples People v. Santorelli restricted the applicability of § 245.01. The Court of Appeals of New York ruled in 1992 that exposure of a bare female breast violates this law only when it takes place in a commercial context. As a practical matter, proper enforcement of this section can be a problem, since local enforcement agents are often unfamiliar with the case law that interprets the statutory language. Santorelli was a narrow ruling based on a very limited argument and set of facts. Not only is the tendency still to enforce on the basis of the original statute a potential problem, but if a model is being photographed topless [in public] the activity itself, and the photographer's promotion and participation in it [§ 245.02 Promoting the exposure of a person.], could easily be construe as a commercial context in which case the full original text of the statute might still be seen by a court to apply and be fully enforceable as written, and BOTH the model AND photographer could wind up being charged - - - and convicted. I knew the play on the law, wondering how he defined his post. Feb 20 13 02:00 am Link Small Fruit Pits wrote: That must have been that "mermaid" case. That was fairly recent, like only 2 or three years ago. LOL Feb 20 13 02:40 am Link Strangely in Scotland there are no indeceny laws, so effectivley you can strip off where you like, except......wait for it..... If someone complains you can be charged with other offences including Breach Of The Peace. as the Naked Rambler found out to his cost. Les Feb 20 13 03:04 am Link LesD68 wrote: Actually, he would NEVER have been charged with anything in the first place if he had gotten dressed when the police responded to a complaint and asked him to. He committed no offence at all until that instant in time. Even after all his multiple encounters with the police and the courts in Scotland he was never charged with an offence of indecency either. Only BotP or behaviour likely to cause BotP. Feb 20 13 09:46 am Link |