The Illegal Erection FAQ
Date: Wed, 12 Feb 1997 15:14:04 -0800
From: Morgan
Subject: The "illegal erection FAQ"
Illegal Erection FAQ version 0.99 2/12/97
Frequently Asked Questions with Answers about legal definitions of nudity
that define an erect penis as nude even if covered with opaque cloth.
Contents
FAQ 1) Why this FAQ? Where can I get it? Who maintains it? When is it
updated?
FAQ 2) What are the common legal definitions of nudity?
FAQ 3) What kind of laws incorporate nudity definitions
FAQ 4) What is the law in ?
FAQ 5) So, what's the final word?
FAQ 1) Why this FAQ? Where can I get it? Who maintains it? When is it
updated?
I wrote this FAQ because the alt.lycra (USENET newsgroup) FAQ
http://members.iglou.com/rsg0910/lycra.faq
created by The Invincible and maintained by Robert G. in discussing the
problem of obvious erections while wearing lycra said
"...it is actually illegal in many places in North America to
display/suggest an erection in public even if fully clothed..."
This piqued my curiosity so I wrote Mr. G asking for a source of this
information and started doing some research on my own. He said I should
try The Invincible, but I doubted that anyone had done a state-by-state
breakdown, so I decided to do my own.
The rec.nude FAQ states in part 3.1:
http://www.oxy.edu/~mop/rnfaqp1.html
"Although there are no U.S. Federal laws prohibiting nude recreation on
Federal lands except at Cape Cod, concurrent jurisdiction became the
catch phrase in the early 1980s, allowing state and local laws to be
enforced by park rangers, Bureau of Land Management officers, and the
like. This insidious encroachment onto Federal turf raises
Constitutional questions and allows state and local jurisdictions to
limit or eliminate altogether many traditional sites suitable for
clothing-optional recreation.
"Western Europe is generally more tolerant, especially of top-free
bathing. Areas in public parks are specifically set aside for the
purpose of CO recreation."
There are other guides for nudists about the legality of their pursuit,
but they are all (as far as I've found) about real, not technical
nudity. The Naturist Legal FAQ can be found at:
http://www.contra.org/lifestyles/naturist/legal.html
I hope to post this FAQ on alt.lycra occasionally and hope to have it
incorporated in the alt.lycra FAQ.
It is maintained by Morgan and will be updated when I get email with
corrections or supplements. Note that I'm not a lawyer, just a curious
guy and that even if you are acting legally, going through arrest and
trial to prove it will be no fun.
Also note that if you are convicted on a sex offense charge (which public
indency is in many places) your community may be notified under
Megan's law.
FAQ 2) What are the common legal definitions of nudity?
There seem to be two common legal definitions of nudity, the A which
only includes actual exposure of skin and the B, which is more
encompassing.
----------THE A DEFINITION----------
>From the San Jose, California Municipal code, section 10.12.030 B
http://www.municode.com/folio.pgi/11548.nfo?
"As used in this section, "nude" means devoid of any opaque covering of
the genitals, pubic hair, buttocks, perineum, anus or anal region of any
person; or any portion of the breast, at or below the areola thereof, of
any female person."
Section 10.12 goes on to say:
"10.12.070 Display of female breasts.
No female person shall, while participating in any live act,
demonstration or exhibition, in any place open to the public or open to
public view, or while serving food or drink to any customer in such
public place:
A. Expose any portion of either breast below a straight line so drawn
that both nipples and portions of both breasts which have a different
pigmentation than that of the main portion of the breasts are below such
straight line; or
B. Employ any device or covering, which is intended to simulate such
portions of the breast; or
C. Wear any type of clothing so that any portion of such part of the
breast may be observed.
(Prior code A7 4500.)
10.12.080 Display of private parts.
No male or female person shall, while participating in any live act,
demonstration or exhibition, in any place open to the public or open to
public view, or while serving food or drink to any customer in such
public place:
A. Expose his or her private parts or buttocks, or employ any device or
covering which is intended to stimulate the private parts or pubic hair
of such person;
B. Permit, procure or assist any person to so expose himself or herself,
or to employ any such device."
10.12.030 is about "improper bathing attire" and 10.12.070 and
10.12.080 is about performances (outside of a theatre) and restaraunts
(essentially prohibiting topless waitresses), but you get the idea about
the details our elected officials can get mired in. Section 10.12.070 A
is especially bizzare because it seems to prohibit deep cleavage.
Note that San Jose's law doesn't explicitly permit exposure of the
breast for the purpose of breastfeeding, though a many states have, or
are enacting, amendments to public indecency laws that do. There is a
web page that summarizes these efforts:
http://www.zipmall.com:80/llli/lawbills.htm
The page's basic purpose is to explain why such efforts are even
necessary:
"This legislation is being enacted not because it is currently illegal
to breastfeed in public, but because it is the public perception that
breastfeeding is indecent exposure. There are no laws anywhere that
prohibit breastfeeding, or tell a mother how long she can breastfeed.
Mothers have the right to breastfeed in public, and the new
breastfeeding legislation clarifies this right."
Here's an excerpt about one such amendment:
"FLA Senate Bill #472, 1993 Amends many criminal statutes to exclude a
mother's breastfeeding her baby; creates a new law stating breastfeeding
must be encouraged, and gives a mother a right to breastfeed her baby
any place she has the right to be, public or private, even if the nipple
is exposed during or incidental to breastfeeding."
----------THE B DEFINITION----------
>From Indiana Code 35-45-4-1, enacted 1976, amended 1984, section 1b
http://www.law.indiana.edu/codes/in/incode.html
""Nudity" means the showing of the human male or female genitals, pubic
area, or buttocks with less than a fully opaque covering, the showing of
the female breast with less than a fully opaque covering of any part of
the nipple, or the showing of covered male genitals in a discernibly
turgid state."
"Discernably turgid" is the key phrase here. You can find this
boilerplate definition in many legal codes:
Santa Monica, California's Municipal code 9.44.030 10 C states:
http://www.ci.santa-monica.ca.us:80/city/municode/
"For purposes of this section Specified Anatomical Areas are:
1. Less than completely and opaquely covered
(a) Human genitals, pubic region;
(b) Buttock; and
(c) Female breast below a point immediately above the top of the
areola; or
2. Human male genitals, less than completely and opaquely covered,
or human male genitals in a discernably turgid state, even if completely
and opaquely covered."
In this, case, though, the code is referring to anatomical areas in
defining "Sexual Encounter Center," "Sexual Paraphenalia Store," "Adult
Model Studio," etc. and is actually part of the Planning and Zoning
code. I'll get to the different kinds of laws that use this kind of
definition in part three of the FAQ. I've quoted a second law here just
to demonstrate how the boilerplate language tends to appear.
FAQ 3) What kind of laws incorporate nudity definitions?
There are three types of laws that I've found about illegal
nudity,sometimes including a covered erection as a definition of nudity:
1) Public indency or lewdness. This is sometimes as simple as exposing
genital, breasts and buttocks in public, but some laws require that
there the exposer has a sexual intent or that the viewer is annoyed or
aroused for the act to be declared illegal. Some laws require
manipulation or stimulation of the genitals or breasts of the exposer to
declare the act illegal.
The definition of public is as tricky as that of nudity. Some of these
laws require that the exposure must be viewable from a public
right-of-way (though the exposer could be on private property behind an
uncovered window) but some include publicly accessible buildings. Most
reserve the latter for the next type:
2) Obscenity in performances. These kind of laws seem to be designed to
regulate strip clubs (bawdy houses). Some try to distinguish between
nudity in "theatrical and dance" performance and those "lacking serious
literary, artistic, political, or scientific value."
Some of these laws ban "sexual display" outright. Most of the laws are
in the Planning and Zoning section and prevent strip clubs from
operating in certain zones or within 500 feet of a church, school, etc.
Some laws are part of liquor board codes; in California, nude dancing
establishments cannot serve alcohol.
3) Obscenity in printed or videotape form. Few of these laws prevent
such material outright. Most either confine the establishments that
sell it to certain planning zones. There are a lot of laws that make
distributing "obscene" materials to minors or not taking care to keep it
from them illegal. There are also many laws preventing child
pornography, some of which include simulated sex as prohibited.
FAQ 4) What is the law in ?
This is a somewhat random sampling of codes available on the web. I'm
concentrating on definitions that include a covered tumescent member as
nudity except in Northern California, where I'm interested in all public
indecency laws. I will continue to research the issue, but I intend to
concentrate on the U.S.A. I'll include links to any codes people email
me the URLs to. If you find a code in paper form that isn't available
on the web, email me for my postal address, send it to me (if you're
that interested) and I'll type it in.
Note that many local laws are not searchable from Excite, Alta Vista,
Yahoo and the like because they're hidden behind search engines on the
web page that contains them (California's page
http://www.leginfo.ca.gov/calaw.html is like this). I haven't found a
directory of municipal and state code web pages yet (except for things
like http://gamma.rollanet.org/gov/other.html#other). If I do, it'll be
easier to visit each page and search for the appropriate statutes. For
now, the best way to find these laws is with the keywords "discernably
turgid" or "lewd AND expose." Public is usually either a stopword (too
common to be indexed) or too common to be useful. Indecent in the
California state codes includes smelly water (indecent to the senses).
Right now, I'm including any nudity definitions I find with quotes or
comments to explain their context, but if this list grows, I'll have to
come up with a two dimensional matrix of code type (public display,
public performance or obscene material) vs. location.
+California
http://www.leginfo.ca.gov/calaw.html
314. Every person who willfully and lewdly, either: 1. Exposes his
person, or the private parts thereof, in any public place, or in any place
where there are present other persons to be offended or annoyed thereby;
or, 2. Procures, counsels, or assists any person so to expose himself or
take part in any model artist exhibition, or to make any other exhibition
of himself to public view, or the view of any number of persons, such as
is offensive to decency, or is adapted to excite to vicious or lewd
thoughts or acts, is guilty of a misdemeanor.
+Riverside, California
http://www.co.riverside.ca.us:80/depts/brdofsup/ords/743.htm
ORDINANCE NO. 743.2
[...]
p. "Specified Anatomical Parts" shall mean:
1. Less than completely and opaquely covered human genitals, pubic hair,
buttocks, natal cleft, perineum, anal region, pubic hair region, or
female breast below a point immediately above the top of the areola; or
2. Human male genitals in a discernably turgid state, even if completely
and opaquely covered.
[in reference to sex-oriented businesses]
http://www.co.riverside.ca.us:80/depts/brdofsup/ords/543.htm
[Riverside also prohibits nude waitrons and entertainers in places that
serve alchohol.]
+Santa Monica, California
http://www.ci.santa-monica.ca.us:80/city/municode/
C. For purposes of this section Specified Anatomical Areas are:
1. Less than completely and opaquely covered
(a) Human genitals, pubic region;
(b) Buttock; and
(c) Female breast below a point immediately above the top of the
areola; or
2. Human male genitals, less than completely and opaquely covered,
or human male genitals in a discernably turgid state, even if
completely and opaquely covered.
[Refers to zoning of adult entertainment uses.]
+San Jose, California
http://www.municode.com/folio.pgi/11548.nfo?
Part 2 IMPROPER BATHING ATTIRE
10.12.030 Nudity prohibited where -- Nude defined.
A. No person over the age of ten years shall be nude and exposed to
public view in or upon any public right-of-way, public park, public
lands, or in or upon any private property open to public view from any
such park, right-of-way or public property; provided, however, that this
section shall not apply to live theatrical performances conducted in a
theater, concert hall or similar establishment, which said performances
shall be covered by Part 4 of Chapter 10.12 of this code.
B. As used in this section, "nude" means devoid of any opaque covering
of the genitals, pubic hair, buttocks, perineum, anus or anal region of
any person; or any portion of the breast, at or below the areola
thereof, of any female person.
+Southington, Conneticut
http://southington.com/zoning/Section2.htm
Specified Anatomical Areas Means:
1. Less than completely and opaquely covered
A. Human genitals, pubic region;
B. Buttock; or
C. Female breast below a point immediately above the top of the areola;
and
2. Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
[refers to Adult Cabarets in a zoning ordinance]
+Florida
Florida Statues
http://www.leg.state.fl.us/statutes/index.html
http://www.scri.fsu.edu/fla-leg/statutes_new/1995/CHAPTER_847_001.html
847.001 Definitions
(5) "Nudity" means the showing of the human male or female genitals,
pubic area, or buttocks with less than a fully opaque covering; or the
showing of the female breast with less than a fully opaque covering of
any portion thereof below the top of the nipple; or the depiction of
covered male genitals in a discernibly turgid state. A mother's
breastfeeding of her baby does not under any circumstance constitute
"nudity," irrespective of whether or not the nipple is covered during or
incidental to feeding.
[This is about obscene material.]
http://www.scri.fsu.edu/fla-leg/statutes_new/1995/CHAPTER_800_03.html
800.03 Exposure of sexual organs. ---
It is unlawful to expose or exhibit one's sexual organs in public or on
the private premises of another, or so near thereto as to be seen from
such private premises, in a vulgar or indecent manner, or to be naked in
public except in any place provided or set apart for that purpose.
Violation of this section is a misdemeanor of the first degree,
punishable as provided in s. 775.082 or s. 775.083. A mother's
breastfeeding of her baby does not under any circumstance violate this
section.
History: s. 1, ch. 7360, 1917; RGS 5445; CGL 7588; s. 1, ch. 61-51; s.
779, ch. 71-136; s. 3, ch. 93-4.
["naked" is not defined here. I couldn't find a specific definition.]
+Clearwater, Florida
http://www.contra.org/lifestyles/naturist/legal.html
Section 21.13 of the Code of Ordinances
| (c) "Nude" means the showing of:
| 1. Human male or female genitals or pubic area with less
| than a fully opaque covering; or
| 2. Any portion of the anal cleft or cleavage of the male or
| female buttocks. Attire that is insufficient to comply with this
| requirement includes, but is not limited to, G-strings, T-backs,
| thongs and any other clothing or covering that does not completely and
| opaquely cover the anal cleft or cleavage of the male or female
| buttocks; or
| 3. The portion of the human female breast directly or
| laterally below a point immediately above the top of the areola with
| less than a fully opaque covering; this definition shall include the
| entire lower portion of the human female breast, but shall not include
| any portion of the cleavage of the human female breast exhibited by a
| dress, blouse, shirt, leotard, bathing suit, or other clothing,
| provided the areola is not exposed; or
| 4. Human male genitals in a discernibly turgid state, even
| if completely and opaquely covered.
| (2) It shall be unlawful for any person to knowingly or
| intentionally appear, or cause another person to appear, nude in a
| public place or in any other place that is readily visible to the public
+Indiana
http://www.law.indiana.edu/codes/in/incode.html
IC 35-45-4-1 Sec. 1. (a) A person who knowingly or intentionally, in a
public place:
(1) engages in sexual intercourse;
(2) engages in deviate sexual conduct;
(3) appears in a state of nudity; or
(4) fondles the genitals of himself or another person; commits public
indecency, a Class A misdemeanor.
(b) "Nudity" means the showing of the human male or female genitals,
pubic area, or buttocks with less han a fully opaque covering, the
showing of the female breast with less than a fully opaque covering of
any part of the nipple, or the showing of covered male genitals in a
discernibly turgid state.
+Akron, Ohio
http://www-hep.phys.cmu.edu:8001/~brahm/Legal/case_akron.txt
{2}Akron's public indecency ordinance now provides:
(A) No person shall knowingly or intentionally, in a public
place:
(1) Engage in sexual intercourse;
(2) Engage in deviant sexual conduct;
(3) Appear in a state of nudity; or
(4) Fondle the genitals of himself or another person.
(B) For the purpose of this section only, the following
definitions shall apply:
"Nudity" means the showing of the human male or female
genitals or pubic area with less than a fully opaque
covering, the showing of the female breast with less than a
fully opaque covering of any part of the nipple, or the
showing of the covered male genitals in a discernibly turgid
state.
"Public Place" means any street, sidewalk, right of way and
any public or private building or place where the general
public is invited.
This is a quote in a case history. I believe the section quoted is
Section 133.06 of the Akron City Code.
+South Carolina
http://www.law.sc.edu:80/opinions/24567.HTM
Fn.3 See S.C. Code Ann. 16-15-130 (Supp. 1995) (unlawful for a
person to wilfully, maliciously, and indecently expose his person in a
public place); S.C. Code Ann. 16-15-365 (Supp. 1995) (unlawful for a
person to wilfully and knowingly expose private parts in a lewd and
lascivious manner in presence of another person); S.C. Code Ann.
16-15-305(B), -305(C) (Supp. 1995) (defining obscenity in part as
depicting sexual conduct in patently offensive way, sexual conduct
including "lewd exhibition, actual or simulated, of the genitals, pubic
hair, anus, vulva, or female breast nipples including male or female
genitals in a state of sexual stimulation or arousal or covered male
genitals in a discernably turgid state").
+Texas
http://www.neurotech.net/~Cop_Shop/title9.html
Section 43.21, Subchapter B on obscenity
(a) In this subchapter:
(1) "obscene" means material or a performance that:
(A) the average person, applying contemporary community standards, would
find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated. including sexual
intercourse, sodomy, and sexual bestiality;
or
(ii) patently offensive representations or descriptions of masturbation,
excretory functions
sadism, masochism, lewd exhibition of the genitals, the male or female
genitals is a state of
sexual stimulation or arousal, covered male genitals in a discernibly
turgid state or a device designed and marketed as useful primarily for
stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and
scientific value.
[This is in reference to obscene materials.]
+Plainview, Texas
http://www.texasonline.net:80/city/
http://www.texasonline.net:80/city/bldcode/nuisance.txt
Sec. 16-9. Display of sexually explicit material to persons under
the age of seventeen.
It shall be unlawful for any owner, operator or manager of
a business establishment open to persons under the age of
seventeen (17) years, to display or allow to be displayed a book,
pamphlet, newspaper or magazine, the cover of which depicts:
(a) Human sexual intercourse, masturbation or sodomy;
(b) Fondling or other erotic touching of human genitals,
pubic region, buttocks or female breasts;
(c) Less than completely and opaquely covered human
genitals, buttocks or that portion of the female breast below the top
of the areola; or
(d) Human male genitals in a discernably turgid state,
whether covered or uncovered; in a manner calculated to arouse
sexual lust or passion for commercial gain, or to exploit sexual lust
or perversion for commercial gain.
For purposes of this section "display or allows to be
displayed" shall mean visible to the public eye either while (the
material is) in or on the newsrack or after (its) removal from the
newsrack. (Ord. No. 78-2249, 1, 9-12-78)
+Washington State
http://www.justnet.com.sg/KY/zines/kill18.html
4.(4) "Sexual excitement" means the condition of human male or female
genitals when in a state of sexual stimulation or arousal; or the
depiction of covered male genitals in a discernibly turgid state.
[This is from House Bill 2267, Section. I don't know if the bill
passed, but it's another example of the illegal erection boilerplate.
It's a law about obscene materials]
FAQ 5) So, what's the final word?
So, the only places I've found where it's illegal to walk around (as
opposed to dance around on stage in a nice part of town or appear in a
magazine that's shown to a kid) with an erection are Clearwater, Florida,
the whole states of Indiana and South Carolina and Akron, Ohio. I'm sure
there are more laws, probably in the regions of the U.S. where I've
already found some, but the fact that tiny municipalties can enact such
codes based on "community standards" means that there will be spots all
over the place, so check your local laws before you get stiff on Main
Street.
