When is exposure indecent?

Tuesday 10 October 2017

A Jersey advocate has clarified the law surrounding indecent exposure after islanders were outraged to learn a man had been taken to court, after his neighbour spotted him naked in his own home through the window.

The neighbour said she could see him clearly from across her balcony because his lights were on and the curtains were open around midnight on a weekend last month - she took a photo and alerted her husband before later reporting the incident, which was said to have lasted around 45 minutes.

Having pleaded guilty to indecent exposure on the basis that his actions were “reckless”, the man was bound over for 12 months in the Magistrate's Court.

Upon hearing the news, hundreds of islanders took to social media to denounce the sentence, and questioned why he was charged for something that occurred in the privacy of his own home. Some asked whether this meant accidental slip-ups would land them in Court.

But, it turns out that as well as being naked, the man had actually been spotted pleasuring himself on his bed, which elevated the nature of the offence.

Advocate Olaf Blakeley explained that prosecution for offences of an ‘indecent’ nature largely depends on the perpetrator’s motive or whether there is an element of ‘lewdness’ to the incident.

Pictured: Advocate Olaf Blakeley explained the law surrounding indecent assault.

Speaking to Express, he reassured islanders that authorities will always judge the case based on circumstances, and that it is unlikely that someone would face Court for an accidental slip-up.

“If for instance you’re naked in a changing room, why is that ok? The reason is, it’s not ‘indecent’, it’s merely an ‘exposure’... There is always a level of discretion and they probably wouldn’t prosecute in that case, they’d say it’s merely an accident,” he told Express.

If someone does an act with the intention of gaining sexual gratification, however, that can even escalate even the most unassuming of acts into indecency. Such was the case in the UK 2007 when a man who had repeatedly stole shoes from women’s feet was charged with sexual assault rather than robbery because he had done so due to a shoe fetish.

“You might have some sexual titillation by shaking someone’s hand. Now that normally wouldn’t be an offence, but if you went around grabbing people’s hands in town and shaking them and you were to find out that a person was doing it for an indecent motive then it’s an indecent assault,” Advocate Blakeley clarified.

While the motives were not indecent in this most recent Jersey case, the law also provides an element of safeguarding in allowing prosecutions to take place even in the case of accidents or recklessness.

“In effect, it tries to say, ‘you have to be mindful of other people.’ It’s like playing music loudly - you might not intend to do it to annoy your neighbour upstairs, but you might be reckless about it, you might not have given it any thought,” he added.

Indecent exposure is currently a common law offence in Jersey, which means it hasn’t been officially written into law, but is recognised as a crime by the courts following previous cases.

That could be set to change if new Sexual Offences legislation is adopted, which proposes to make an offence of exposure. Under the proposed new laws, a person could face imprisonment of up to two years and/or an unlimited fine if they expose any area of their genitals “intending someone will see it, and intending to obtain sexual gratification (without reasonable belief in consent) or to cause humiliation, alarm or distress.”

The draft legislation is currently in its consultation stage, and islanders can submit their thoughts here until Friday.