It is unfortunate, to say the least, that the legal position of naturism, which is all about non-sexual nudity and respect for others in a natural and wholesome setting, has to be discussed in the context of the criminal law on sexual offences but that is the reality.
There was a fundamental change in the law on public nudity following the enactment of the Criminal Law (Sexual Offences) Act 2017. Section 46 (1) of the Act says: “A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.”
This new Section replaced the old law on public indecency set out in Section 18 of the Criminal Law Amendment Act 1935 which stated: “Every person who shall commit, at or near and in sight of any place along which the public habitually pass as of right or by permission, any act in such a way as to offend modesty or cause scandal or injure the morals of the community shall be guilty of an offence…” This Section was declared to be unconstitutional by the High Court in 2014 and is now null and void.
The new law, which is similar to the law on public nudity in the UK, states that for an offence to be committed the person exposing him/herself must intend to cause fear, distress or alarm to another person. In other words being naked in itself is not illegal under this law. It is our opinion that this law, in effect, enables the provision of official public naturist facilities at suitable beaches and bathing areas and that erecting signs such as “Beyond this point you may encounter nude bathers” will ensure that non naturist members of the public will not suffer fear, distrss or alarm.
The reply by the Department of Justice and Law Reform to our submission on the law concerning public nudity is here – note that the reference in the Department’ s letter to Section 39 of the Bill refers to Section 46 of the Act.
In addition to the enactment of the 2017 Act the comments of Mr Justice Richard Humphreys in the High Court on 18th May 2016 are also very relevant. He said that “…..[people] merely exposing themselves in a public place does not constitute an offence. There were many counter examples where to do so is manifestly not indecent. These “life affirming activities” include use of certain bathing places, discreet skinny dipping, certain saunas, exposure for the purposes of theatre, avant-garde performance art, discreet artistic photography and so on”.
We have sent submissions to a number of local authorities asking them to take the provisions of the new Section into account and designate suitable places as naturist or clothing optional. Only one Council (Dun Laoghaire/Rathdown in Dublin) has responded. We had a very positive meeting with Council officials. Although they were not in a position to designate Hawk Cliff bathing place specifically as a naturist area they were prepared to put up official signs advising the public that they may encounter nude bathers. These signs were originally due to be erected in the Spring of 2018 but they have not yet been installed.
This is the first time that any public body has officially recognised that a public area can be used by naturists and is a groundbreaking development.
The full text of Section 46 is:
(1) A person who exposes his or her genitals intending to cause fear, distress or alarm to another person is guilty of an offence.
(2) A person who, in a public place, engages in— (a) sexual intercourse,
(b) an act of buggery, or
(c) an act of masturbation, 31 PT.8 S.45 [No. 2.] Criminal Law (Sexual Offences) Act 2017. [2017.] is guilty of an offence.
(3) A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence.
(4) Where a member of the Garda Síochána, with reasonable cause, suspects that a person is committing or has committed an offence under this section, the member may arrest such person without warrant.
(5) A person found guilty of an offence under this section shall be liable— (a) on summary conviction, to a class D fine or imprisonment for a term not exceeding 6 months, or both, or (b) on conviction on indictment, to a class C fine or imprisonment for a term not exceeding 2 years, or both.
(6) In this section— “offensive conduct of a sexual nature” means any behaviour of a sexual nature which, having regard to all the circumstances, is likely to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour; “public place” means any place to which the public have access whether as of right or by permission and whether subject to or free of charge; “sexual intercourse” shall be construed in accordance with section 1(2) of the Criminal Law (Rape) Act 1981
This new law, and the comments of Mr Justice Humphreys, are reassuring for all genuine naturists and provide considerable legal comfort. However it should be noted that there are other very old laws which are still in force and which have not been repealed or amended. These include The Vagrancy Act 1824, (Section 4), Towns Improvement (Ireland) Act 1854, (Section 72) and Criminal Justice (Public Order) Act 1994, (Section 5).
That said, no member of the Irish Naturist Association, and to the best of our knowledge, no genuine naturist has ever been prosecuted, not to mention convicted, for genuine naturist activities.