Public Nudity – Obscene Exposure (NSW)

In New South Wales, Obscene Exposure is an offence which criminalises public nudity or exposing one’s genitals. The offence prohibits “willfully and obscenely exposing his or her person” in or within view of a public place or school. 

Not all nudity is captured, just where it amounts to obscene exposure. For example, there are a number of ‘clothing optional’ beaches in New South Wales such as Tyagarah Nature Reserve near Byron Bay. On these beaches, it is permissible to be partially or completely naked. That being said, even within these areas, there can be uncertainty as to exactly where nudity is permitted as some nudity may still be considered to be obscene.

The offence carries a maximum penalty of 10 penalty units and/or 6 months imprisonment.

What is the Offence of Obscene Exposure?

The offence is contained in s 5 of the Summary Offences Act and states:

A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.

The Court has interpreted the phrase ‘wilfully and obscenely expose his or her person’ as referring to the genital area of either a male or a female in a public place. There is no requirement for the nudity to be of a sexual nature or for a sexual act to be performed for the offence to be made out.

The following acts may constitute an offence of Obscene Exposure:

• Swimming completely naked at Bondi Beach;
• Removing your pants and underwear and running onto a football field during a match; or
• Pulling your pants down so your genitals are exposed whilst standing on a footpath.

What Must Be Proven?

For a person to be found guilty of Obscene Exposure the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You exposed your genitals;
• You did so willfully;
• You did so obscenely;
• You were in or within view of a public place or school; and 
• You did so without lawful excuse.  

Which Court Will Hear the Matter?

This offence is a summary offence, which means the matter must be finalised in the Local Court. 

Possible Defences to Obscene Exposure

The following defences may be available for a Obscene Exposure charge:

• You did not expose your genitals;
• You did not do so willfully (or the exposure was accidental);
• The exposure was not obscene;
• You were not in or within view of a public place or school; or
• To raise duress or necessity as a defence.

Common Questions about Obscene Exposure

Will I receive a criminal conviction?

Probably. Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is likely (especially if the person has prior offences). However, it remains possible to avoid a conviction, with about 15% of people avoiding conviction. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living. Some jobs require no criminal convictions, and a conviction might jeopardise a person’s employment or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for Obscene Exposure?

Possibly. A 6 month maximum penalty is available for this offence, which is a relatively low maximum penalty. However, approximately 10% of people are in fact sentenced to imprisonment. Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.