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IS IT LEGAL TO BE NUDE ON A NUDE BEACH IN HAWAII?

Dr. George R. Harker/ Maui, Hawaii

A recent ruling by the Supreme Court of Hawaii suggest that indeed it just may be, or at the very least it is not indecent exposure under Hawaii Revised Statutes.

On October 18, 1998 six men were arrested for being nude on Polo beach at Makaleha Beach Park. A beach popular on Oahu as a nude beach. All were charged and convicted of violating  HRS 707-734 renamed Indecent exposure and redefined in 1993.  HRS 707-734 Indecent exposure. (1) A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the actor's conduct is likely to cause affront.

The Circuit Judge found the men guilty as charged. Reasoning that anyone coming across these individuals on the beach could be affronted. The Judge said, "I don't have to have testimony before me from the policemen that they were affronted. All I have to do is have the facts before me that would indicate that a reasonable person under the same circumstances could and would be affronted by it." Apparently, according to the judge it is young children and elderly persons which are particularly prone to be affronted by beach nudity.

Well, the Supreme Court didn't see it quite the same way. It reversed the convictions of the four who appealed on September 29, 2000. A brief review of their analysis should yield insight into whether nude sunbathing in Hawaii is legal or illegal and whether it is indecent exposure or not.

The Court noted that the exposure of genitals had to be "intentional" and with a conscious object to affront the other individual. It was also important that the person not be married to the person doing the exposing.

Under state law their are four states of mind; "intentional, knowing, reckless and negligent."  In this regulation the operative state of mind is intentional, nothing more and nothing less.

The Supreme Court had trouble with the idea of "intentional" because the other individuals were also naked and it didn't make any sense that the individual was trying to cause alarm to any of the other persons on the beach. The Court also noted that the act had to be directed to some specific person, not someone who might or might not happen along. Clearly whether the police were affronted or not was immaterial.

Some mention was made of a legislative committee report which stated, "The newly titled section is intended to deal with behavior such as nude sunbathing or streaking, that does not cause alarm or fear of bodily harm, in circumstances where it is likely to be an affront to a substantial part of the community." (Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103.)

The Court took the position that the law was very clear as to what it meant and to bring in other interpretations not self evident would lead to constitutional questions best left out of the picture.

The real crime in this story is the cost in money and energy to those arrested. It took two years and thousands of dollars for the court to make the determination that should be self evident to any public prosecutor with a minimal amount of intelligence.

Some of the funding for the appeal came from the Naturist Action Committee and the Naturist Education Foundation. The NAC web site is http://www.naturistsociety.com/NAC. If you want to read the opinions of the Hawaii Supreme Court for these cases, go to the site and click on "Links and Resources" and look for "HAWAII v. MILFORD" and "HAWAII v KALAMA."

http://nef.oshkosh.net/Toni_Egbert_Library/Selector/State_Supreme_Courts/HI_v_Milford/hi_v_milford.html
http://nef.oshkosh.net/Toni_Egbert_Library/Selector/State_Supreme_Courts/HI_v_Kalama/hi_v_kalama.html

Ironically the closing of Kaloko-Honokohau beach to clothing optional use was challenged in Federal Court and the Judge used the idea that State of Hawaii regulations prohibit nude sunbathing as the basis to allow the National Park Service to violate its own procedures in that closing.

It is interesting to note that the people whose convictions for nude sunbathing were all local and lived on the island. Yet the fact of the arrest was not lost on the tourist.  The islands of Oahu and Hawaii both suffered a decline in visitation in 1998. It appears to be self evident that the decline was directly attributed to the anti nude sunbathing and ocean bathing activities of individuals.

Can one legally sunbathe nude in Hawaii? Clearly the answer is yes as long as you don't have an attitude and are trying to intentionally affront someone. Because of the 1993 change in wording your appearance may "alarm" someone, it just may not affront. Remember also that the operative word is "intentionally."  It is not your fault if you are well endowed and the mere site of it makes people shudder.

In a Concurring Opinion by Ramil, J., the Justice goes out of the way to note that the, "majority's analysis does not yield a result apparently inconsistent with the legislative purpose and design of Hawaii Revised Statute (HRS) 707-734(1993)."  The Opinion of the Court by Acoba, J. alluded to the 1991 legislative committee report which talked of prohibiting nude sunbathing and streaking and decided that such language didn't apply to all nude sunbathing.

So in conclusion, if you want to get naked in Hawaii the key is go to an established nude beach and join those already there. An established nude beach is one mentioned in a guide book and/or established by local use. There are quite a few in the islands. With the clear decision by the Supreme Court of Hawaii my guess is that there will be a lot more beaches established in the months ahead.

Hawaii has a long tradition of nude bathing that predates the tourist and the missionaries. Many would like to see this aspect of the local culture returned.

--Writer Dr. George R. Harker can be reached by email at drleisure1@aol.com.

Article may be reproduced with appropriate credit: drleisure.com

Copyright 2000, Dr. Leisure

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