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Hello,
I would like to ask a question about ethics involved when nudity is permitted in public places.

I live in Sydney, Australia. At one of the most popular beaches here (which hosts tens of thousands of people per day and is freely available to anyone who wishes to go there), a man was arrested and fined $500. This was punishment because he had been on the beach with a camera, surreptitiously photographing women who were lying on the sand, with no tops on. He was discreet such that almost none knew at the time that he had photographed them - after they apprehended him, police went around with his camera, identifying people and approaching them with the images in hand.

Many people using this beach choose to sunbathe disrobed, of their own free will.

The man admitted that his actions were intended to further his own sexual gratification.

Although I think the man's behaviour was in poor taste, using others as mere means to his own selfish ends, on consideration I cannot see why it should be held illegal or punishable.

Firstly, anything that is visible from any public place is obviously visible to anyone who happens to be in that public space, and that includes busses, houses, trees and people who choose to disrobe. I have never heard of a law that prohibits anyone seeing whatever it is they see from a public place.

Secondly, if it is permissible for passers-by to see a person on Bondi Beach who has chosen to disrobe, then ought any emotional or hormonal response stimulated in the viewer be prohibited, as long as the person so exited does not act in a way that harms others? If it were so, then surely every person who has ever been sexually exited by the sight of a stranger's disrobed body, and then silently lusted about it, has acted in a prohibited way.

Thirdly, how using a camera to 'fix' an image of what one can see, and preserving this image, significantly different to seeing it? Even if we assumed the man intended to use the photographs for commercial gain, then how is this different to him taking a photo of Sydney Harbour, including in it the thousands of buildings lining it, and using this photograph for commercial gain? What about images of all manner of things available on Google Earth?

Fourthly, shouldn't the onus for privacy lie with the people who have chosen to disrobe? If they do not wish people to photograph their bodies, should they not keep them robed while they are in a public space?

April 5, 2006

Response from Alan Soble on April 6, 2006
This is not exactly a "sex" question. I think it belongs under "law": what are the proper limits of the law in prohibiting behavior; what is the relationship between law and morality (bad taste, indecency); what are the various senses of "privacy" and how should the law handle violations of privacy? There are indeed many entires in the "law" area of this web site that speak to these questions. One problem I have with the question is that it does not state the law (statute) under which the man was prosecuted. Does Sydney have an explicit law that prohibits the use of photographic equipment on beaches where there is nude sunbathing? If so, why? Or was some other law invoked to prosecute this fellow? (Public nuisance? Environmental hazard?) I once lived, many years ago, in Austin, Texas; in the town there was [still is?] a large pool, Barton Springs, at which women were permitted to be topless. Men would gather around or outside the pool and watch/look/leer and take pictures. No one, as far as I know, was arrested for doing so. That men gathered for that purpose is itself revealing, about American culture, I think. In other parts of the world women go to the beach topless [or unabashedly breast-feed their infants at a cafe] and no one cares or pays much attention (except American tourists). I once walked across a bridge over the Danube near Vienna, and was surprised to see both topless women bathers below and the absence of interest by passersby. The U.S. is nearly the only country in the world which has never depicted bare female breasts on a postage stamp (I have studied this diligently but, alas, my evidence for it -- a large collection of such stamps -- was lost to Katrina), and is the country in which bare breasts on a statue [painting?] were covered during press conferences at the request of the attorney general. (See? I'm trying to turn this question into a sex question.) All your arguments, nicely listed above, seem to me sound. What I do not understand very well is the prudery of American culture.
Response from Alexander George on April 6, 2006
NB: The categories of this question were expanded to include "Law" and "Ethics", after Professor Soble's response above was posted.
Response from Nicholas D. Smith on April 13, 2006

As a matter of prudence, I am inclined to agree with the arguments of the questioner--if one does not want others to photograph one's exposed breasts (or other body parts), one should keep them covered in public.

On the other hand, I don't think that the issue is quite as simple as this. The man who was arrested admitted that he used the photos for his own sexual gratification. But what if he was posting them on a website--perhaps for profit? I think there are somewhat thorny issues here, and do think that the most important ones have to do with legal protections of personal privacy, and where the lines get drawn on this issue. Does appearing in public mean that anyone can photograph me for any purpose whatsoever? That does seem a bit much to me! Here is another example--what do you think of the idea of a pedophile photographing children swimming or running around on a beach in the nude (as one can see in lots of places in the world)? No problem here? I guess I would caution the questioner that the obviously prudent reply that he or she provides tends to mask some important issues about whether our privacy should still be protected from various forms of intrusion even when we are in public--and I guess my own intuitions on this are somewhat mixed. Although I agree they should not be as aggressively protected as when we are in private, I don't think it becomes "open season" when we are in public, either, no matter what we are or are not wearing.

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