Califorina Penal Code Section 314(1): Nudeness or Lewdness
![handle is hein.journals/hastlj24 and id is 1357 raw text is: CALIFORNIA PENAL CODE SECTION 314(1):
NUDENESS OR LEWDNESS?
In In re Smith,' the California Supreme Court recently held that the
California Penal Code prohibition of indecent exposure2 does not pro-
scribe nude sunbathing on an isolated public beach, since, without
more, it is not lewd conduct. The court's ruling clarified the criteria
for determining what conduct qualifies as indecent exposure by
requiring that the state must produce proof beyond a reasonable
doubt that the actor not only meant to expose himself, but intended
by his conduct to direct public attention to his genitals for purposes of
sexual arousal, gratification or affront.3
Acts of sexual exhibitionism and public indecency probably long
predated any written laws making such conduct illegal. Freud ex-
plained sexual exhibitionism by the male as a product of a castra-
tion complex.4 Such acts, he maintained, are attempts to empha-
size the integrity of the male genitals, and signify the male's infan-
tile satisfaction over the female's lack of a penis. Whether or not
one chooses to accept Freud's explanation for such conduct, a review
of the reported cases indicates that criminal indecent exposure is,
and has been, essentially a male phenomenon.5
As the English common law took shape, sexual exhibitionism was
classified as criminal.6 Open and gross lewdness and lascivious be-
1. 7 Cal. 3d 362, 497 P.2d 807, 102 Cal. Rptr. 335 (1972).
2. CAL. PEN. CODE § 314(1) (West 1970).
3. 7 Cal. 3d at 366, 497 P.2d at 810, 102 Cal. Rptr. at 338. The term
genitals or private parts denotes the external procreative organs. Pendell v. State,
158 Tex. Crim. 119, 120, 253 S.W.2d 426, 427 (1952); accord, State v. Dennison, 72
Wash. 2d 842, 846, 435 P.2d 526, 529 (1967); see Clark v. People, 224 IM. 554,
560-61, 79 N.E. 941, 943 (1906). A woman's breasts are not private parts within
the meaning of a statute prohibiting exposure of private parts, since they are not
part of her genital organs. State v. Jones, 7 N.C. App. 166, 168-69, 171 S.E.2d 468,
469 (1970); accord, State v. Moore, 194 Ore. 232, 240-41, 241 P.2d 455, 459 (1952).
There is no California case construing private parts as used in section 314(1).
However, it appears that the California view would be consistent with the cited cases
since the Penal Code section which authorizes local regulation of exhibitions in public
places, refers to exposure of the private parts or buttocks of any participant or the
breasts of any female participant. CAL. PEN. CODE 318.6 (West 1970).
4. S. Freud, Three Contributions to the Theory of Sex The Sexual Aberrations,
in THa BAsic WnrrNGs OF SmmUND FREUD, 569 n.1 (A. Brill ed. 1938).
5. See text accompanying notes 55-61 infra.
6. 4 W. BLACKSTONE, COMMENTARIES *64.
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Califorina Penal Code Section 314(1): Nudeness or Lewdness
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