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1 Crim. Just. J. 491 (1976-1978)
Criminal Sanctions against Nude Sunbathing in California

handle is hein.journals/tjeflr1 and id is 511 raw text is: CRIMINAL SANCTIONS AGAINST NUDE SUNBATHING IN CALIFORNIA INTRODUCTION: The common law courts of England were allowed consid- erable latitude in the regulation of public morality. Following the English common law tradition, it was considered that the courts did not make law--they discovered it. Thus, a court could discover that an act was contra bonos mores; that is, against good morals. The doctrine of contra bonos mores was utilized to prevent the corruption of public morals by prohibiting public nudity, pornography, prostitution and unnatural sex practices.1 The jury would decide in each case whether the disputed practice controverted good morals. Because of this case-by-case evalua- tion it was difficult to predict which acts would incur criminal penalties. In the United States, the determination of what is contra bonos mores is now largely a matter of statutory interpretation. In reference to acts of public nudity, the statutes may be enti- tled indecent exposure, indecent conduct, or lewd and lascivi- ous behavior.2 Recently, some courts have begun to interpret these stat- utes narrowly when prosecutions are based on nude sunbath- ing. The inclusion of nude sunbathing with much more seri- ous sex crimes has been resisted by some justices, for the stigma and loss of rights which accompanies a felony convic- tion seems a harsh penalty for such behavior.3 The proponents of nude bathing have attacked the prohibi- tion on constitutional grounds. The First Amendment guaran- tees of freedom of speech, association and religion have all been raised in challenges to nudity bans. It has also been claimed that the prohibition of nude bathing violates the right to privacy and denies women equal protection.4 The reactions 1. See generally Williams, Sex and Morals in the riminal Law 1954-1963, 1964 CIm. L. REv. 253. 2. See, e.g., CAL. PENALCODE §314, infra note2l. 3. See, e.g., In Re Smith, 7 Cal. 3d362, 497P.2d807,102 CaL Rptr. 335 (1972). 4. See Eckl v. Davis, 51 Cal. App. 3d 831, 124 Cal. Rptr. 685 (1975) in which the

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