Re: Penal Code lewd behavior

This is what I have found during my reasearch ... hope it helps:

The first thing I came across mentioned the 1st amendment. But when I looked up the wording, I couldn't see why people rely on it for nudity.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Anyway, I also found the following information dealing with Federal and California laws:

United States [US]:

http://www-hep.phys.cmu.edu/~brahm/legal.html#us

There is no federal law against nudity, but neither is it a Constitutionally protected right. Its legality is therefore determined by state and local laws.

National Parks generally tolerate naturism (e.g. Baker Beach in the Golden Gate National Recreation Area), but sometimes local laws take precedence. Nudity is expressly illegal on the Cape Cod National Seashore.

The U.S. Supreme Court, in _Barnes v. Glen Theater, Inc., 111 S.Ct. 2456 (1991) (http://www.law.cornell.edu/syllabi?Barnes) [*09], "concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression." Chief Justice Rehnquist wrote, "This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity."

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California [CA]:

http://www-hep.phys.cmu.edu/~brahm/legal.html#ca

See http://www.bayareanaturists.org/resource.html for more complete information on California, especially the Bay Area.

State law is tolerant of non-sexual nudity, having established in 1972 that "nude is not lewd", but there are many local anti-nudity ordinances. There is a CA Administrative Code limiting nude use of State Parks (and beaches) to "traditional locations".

Under the State Parks and Recreation Dept.'s Cahill Policy (http://www.bayareanaturists.org/cahill.html) (1977, named after Superintendent Russell Cahill), nude use is permitted in traditionally nude areas, unless there is a complaint. Rangers respond to a complaint by asking you to dress, after which you may not disrobe again that day. If you comply, no citation is issued; otherwise you are in violation of CA Administrative Code Sec. 4322 (below). The Cahill Policy was upheld in CA v. Bost (http://www.bayareanaturists.org/bost.html), Placer County Superior (Appellate) No. 75689 (1988), and spelled out by Jack Harrison, Deputy Director for Operations, in a letter to Cec Cinder (http://www-hep.phys.cmu.edu/~brahm/Legal/cinder.txt) dated 6/14/88. [*15]
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CA Administrative Code, Div. 3, Title 14, Sec. 4322 ('Nudity') reads: [*03] No person shall appear nude while in any unit of the state park system except in authorized areas set aside for that purpose. The word nude as used herein means unclothed or in such a state of undress as to expose any part or portion of the pubic or anal region or genitalia or any portion of the breast at or below the areola thereof of any female.
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CALIFORNIA PENAL CODE, Section 314 (Indecent exposure): [*02] Every person who willfully and lewdly, either: 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, 2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.

Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach as defined in Section 635 of the Vehicle Code, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year.

Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.
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CALIFORNIA SUPREME COURT decision "In re Smith" (http://www.bayareanaturists.org/smith.html) (excerpts): (In re Smith (1972) 7 C3d 362, 102 Cal Rptr 335, 497 P2d 807.)

"A person does not expose his private parts 'lewdly' within the meaning of Penal Code, Section 314, condemning indecent exposure, unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires 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.

"Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person who simply sunbathes in the nude on an isolated beach does not 'lewdly' expose his private parts within the meaning of Penal Code, Section 314, condemning indecent exposure."

Note that persons who are found guilty under Section 314 must register as sex offenders, according to CA Penal Code Section 290. [*20]