What is Obscene Exposure and Offensive Conduct?

By Jimmy Singh

A man has reportedly masturbated in public with his penis exposed in-front of women in Melbourne.

The male, who police are still on the hunt for, is described as Caucasian or European in his 20-30 years of age with a beard, and short dark hair.

On one occasion he has reportedly yelled out to a woman walking from a train station at approximately 10pm without pants and masturbated. His then reportedly masturbated in-front of the same woman on 2 other occasions.

Police are continuing their investigations to locate this man.

What are the Penalties for “Obscene Exposure” and “Offensive Conduct”?

It is a criminal offence that attracts a term of imprisonment of up to 6 months and/or a $1,100 fine if you wilfully and obscenely expose yourself in or within view from a public place or school. This is reflected in section 5 of the Summary Offences Act 1988 (NSW).

It’s also a criminal offence that attracts a term of imprisonment of up to 3 months and/or a $660 fine for conducting yourself in an offensive manner in or near, or even within view of a public place or school. This is reflected in section 4 of the Summary Offences Act 1988 (NSW).

A public place is anywhere that’s open to the public or used by the public.

What is “Obscene Exposure”?

Bevaiour or conduct will be considered “obscene” if in the circumstances it will offend the susceptibilities of the current community standards by violating the contemporary standards of decency at the time.

Arguably, walking nude on a nudist beach is unlikely to be a violation of the contemporary standards of decency. The same would likely apply for walking around nude in a men’s bathroom.

In contrast, exposing your penis on a public street is considered to violate the contemporary standards of decency judged by the current community standards.

The offence of “obscene exposure” is in fact a more serious charge than the charge of conducting yourself in an “offensive manner” reflected in the higher penalties.

However, the shoeless masturbating man could technically be charged with either. Sometimes the prosecution will lay both charges with the lesser serious one (“offensive manner”) as a back-up charge.

A back-up charge is often applied just in case the main charge that the prosecution wants to prove may not end up being proven beyond reasonable doubt in court. This will then leave the prosecution to at least prosecute with the lesser serious charge.

Having a back-up charge has its advantages too. It can also allow criminal defence lawyers to negotiate by offering a plea of guilty to the lesser serious charge on the condition that the prosecution drop the more serious charge.

What is “Offensive Conduct”?

Behaviour or conduct will be considered “offensive” under the law if it would wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.

The law considers that a “reasonable person” is not thin-skinned.

On that basis, you will only be guilty of conducting yourself in an “offensive manner” if, had there been the hypothetical ordinary reasonable person present at the time of your behaviour, that hypothetical person could have seen your behaviour and would have been offended by it.

The police do not have to prove that a person was actually present to view your behaviour.

Whether the hypothetical ordinary reasonable person would have been offended by your behaviour will depend on the current standards of the community. As such, certain behaviour or conduct in today’s society is considered acceptable that never was many years ago.

Whether the behaviour is “offensive” also depends on the location, and circumstances.

The use of the word “shit” according to law was considered not to be “offensive” in the early 1990’s.

The use of the word “fuck” is yet another example of today’s community standards acceptance of the word in certain circumstances.

Local Court Magistrate Heilpern in the case of Police v Butler [2003] NSWLC 2 expressed his views with examples. He said that Kerry Packer used the word to describe his near-death experience. He also said that the president of the NSW Parents and citizens Association said that the word “fuck” was acceptable in her house, but “wog” was not.

Even sports stars in football tell each other to “fuck off”. Although they might be sin-binned, however they are never charged.

Rupert Murdock was even heard saying “fucking ABC” in an interview for Media Watch on 20.5.2002.

The Magistrate expressed his experience of watching a PG rated movie which used the word “fuck”. This is a reflection that even those that rate the movies we watch no longer consider the use of the word to be as serious as it once was.

The case of Ball v McIntyre (1966) 9 FLR 237

The accused was charged for conducting himself in an offensive manner in a public place. The alleged offensive behaviour was that he climbed onto a statue of King George V and on there hung a placard reflecting the words “I will not fight in Vietnam”.

Justice Kerr on an appeal said,

“people may be offended by conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill advised, hurtful, not proper conduct… This charge is not available to ensure punishment of those who differ from the majority… different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community but for my part, I believe that a so called reasonable man is reasonably tolerant and understanding, and reasonably contemporary in his reactions.”

Merely expressing political views, even if it’s done outside the premises of those who’s views are being attacked, doesn’t amount to offensive conduct or behaviour.

However, in the case of the shoeless man masturbating in public in-front of women- a reasonably tolerant and understanding and contemporary person in his/her reactions would be wounded or angered or outraged in our current community standards. It’s likely that this type of behaviour, unlike others, will always be considered as “offensive”.

Defences to Obscene Exposure and Offensive Conduct

You will be Not Guilty if any of the following apply to your case:

  • The place of the conduct or obscene exposure occurred in a location where the general public had no permission to go;
  • Your actions or behaviour amounting to the offensive conduct or obscene exposure was done involuntarily by you without your free will. Some medical conditions can cause a person to perform involuntary behaviour.
  • In the case of “offensive conduct”, you had a “reasonable excuse” for behaving that way. For example, self defence or where you were trying to break up a fight. In some cases, “reasonable excuse” can be where you honestly and on reasonable grounds held a certain believe that your behaviour was allowed.
  • Lawful authority: where you had lawful authority to conduct yourself in the way you did.
  • In the case of “offensive conduct”, you were expressing a political view.
  • In the case of “obscene exposure”, where the exposed area could not be seen by a person in a public place.
  • Duress and Necessity

On a plea of guilty or finding of guilty for either of these offences, you can represent yourself in court and ask the Magistrate for a conditional release order (CRO) also known as a s10 non-conviction.

It’s critical to be prepared before court. You can do this by gathering powerful character references for court. This is one of the best ways to outline key points for the Magistrate to consider when determining whether to impose a penalty without a conviction against your name.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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