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Garden nude in your backyard? Backyard Gardening Au Naturel Raises Right-To-Privacy Questions

 
 
Reply Mon 26 Jul, 2010 09:47 am
July 26, 2010
Backyard Gardening Au Naturel Raises Right-To-Privacy Questions
By Alan M. Malott
For the Albuquerque Journal

"And they were both naked, the man and his wife, and were not ashamed." — Genesis 2:25

QUESTION: My wife and I enjoy working in the yard in the nude. We have a 6-foot fence but I am concerned about whether we could be charged with indecent exposure. I also understand New Mexico has an anti-voyeurism law which makes it illegal for others to look in at us. What's up with our privacy rights?

ANSWER: The response to this question requires we review and compare two different sections of the Criminal Code. Both appear in the Sexual Offenses section of the statutes.

Indecent exposure is defined as "knowingly and intentionally exposing {the} primary genital area to public view." Primary genital area is defined as what we each have "below the belt." If that exposure involves a minor, or accompanies an assault or battery on someone else, the crime is aggravated indecent exposure and is a felony-level crime.

It's also interesting that we have specific statutes on indecent dancing and indecent waitering though these laws are outside our scope today. The clear purpose of these portions of our criminal code is to make people keep their privates private.

The key issue in your situation is how the term "public view" is interpreted. The case law is clear that exposing one's primary genital area within the confines of one's home is not a violation of law, but doing so in a vehicle is, even though one's vehicle is often treated as an extension of the home for other purposes such as concealed weapons. Further, the appellate courts have ruled that the exposure of one's primary genital area must be more than accidental. It is not necessary that you intentionally flash a particular person, just that you know you are exposed to other people in general. It is not necessary that anyone actually sees you, just that others could see you. Recognizing that the purpose of the law is to protect the public from "lewdness," the Court of Appeals stated in 1985:

"Unintentional or inadvertent acts involving exposure of a person's body to either an adult or child as a result of carelessness, particularly when the events occur in the privacy of one's home, do not constitute a criminal offense. What constitutes a public place within the meaning of the statute depends on the circumstances of each case."

A couple's activities confined to their own back yard, and conducted behind a six-foot fence are unlikely to provide the type of circumstances which would support a charge of indecent exposure.

The other half of our consideration focuses on those who might look over that six foot fence, and thereby run afoul of New Mexico's so called anti-voyeurism statute. Enacted in 2007, Section 30-9-20 prohibits the intentional viewing or recording another person's "intimate areas" without their knowledge or consent where that person is in a bathroom, fitting room or other place, public or private, where a reasonable expectation of privacy is present. This statute appears to be aimed at the charming practice of placing tiny cameras in places they should not be placed, often leading to posting on some Internet site somewhere. It is designed to protect people's rights of privacy as opposed to combating the lewdness of a citizen who exposes themselves intentionally.

At this time, there are no appellate interpretations of 30-9-20 available, but the key issue in today's query is whether or not the backyard is a place where one has a reasonable expectation of privacy. If so, intentionally peeking over that six-foot fence is likely a criminal offense under 30-9-20.

In conclusion, it is very unlikely that nude gardeners working in their own backyard have violated the prohibition against indecent exposure, while anyone who purposefully looks in on those activities may themselves have committed a crime.



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Type: Discussion • Score: 13 • Views: 7,995 • Replies: 27

 
BumbleBeeBoogie
 
  1  
Reply Tue 27 Jul, 2010 02:35 pm
@BumbleBeeBoogie,
Looks like nobody romps in the nude in their backyard. I thought you were a more adventurist bunch.

BBB
chai2
 
  1  
Reply Tue 27 Jul, 2010 02:47 pm
@BumbleBeeBoogie,
I wouldn't want to garden with no clothes on. All kinds of things to poke and scrape you.

BumbleBeeBoogie
 
  1  
Reply Tue 27 Jul, 2010 02:54 pm
@chai2,
Are you shy?

BBB
Linkat
 
  1  
Reply Tue 27 Jul, 2010 03:07 pm
@chai2,
And I wouldn't want to get into trouble - one guy was in trouble/charged and he was naked in his house because some kid could see him in the windows.
0 Replies
 
sozobe
 
  1  
Reply Tue 27 Jul, 2010 03:08 pm
@chai2,
Not to mention bite you. That's my first thought.
ossobuco
 
  1  
Reply Tue 27 Jul, 2010 03:15 pm
Well, fences/walls are routinely only six feet high, per code, unless people get approval from the city. Many homes are more than one story. Like.... duh!
0 Replies
 
Pemerson
 
  1  
Reply Tue 27 Jul, 2010 03:16 pm
mosquitos. hate those little buggers.
0 Replies
 
edgarblythe
 
  1  
Reply Tue 27 Jul, 2010 03:19 pm
I worked at a man's house, doing remodeling - mainly exterior work. This is 19 years ago. I soon realized he was homosexual, as he seemed quite taken with me. But, he did not make any advances and I was able to get the job done. Toward the end of the project, I began to see a little more of the young man who lived there also. I began to see that the neighbors hated these guys. And, although the yard had an eight foot fence, there were cracks large enough that these neighbors could not help noticing they ran around out there, nude.

I am reasonably sure that the neighbors complained to the authorities and were told nothing could be done, because, to me, it had the appearane of being a long running situation.
0 Replies
 
chai2
 
  1  
Reply Tue 27 Jul, 2010 05:44 pm
@sozobe,
sozobe wrote:

Not to mention bite you. That's my first thought.


Yeah! You could get bit right on the pooter pie!
ossobuco
 
  1  
Reply Tue 27 Jul, 2010 09:41 pm
@BumbleBeeBoogie,
I've designed screened gardens.

Why are you taunting Chai, Bumblebee?
ossobuco
 
  1  
Reply Tue 27 Jul, 2010 09:54 pm
@ossobuco,
Bumblebee is ten years and a bit more than I am. I think we can still yammer at each other back and forth, with past gusto.
0 Replies
 
Gargamel
 
  1  
Reply Wed 28 Jul, 2010 09:11 am
I saw this online and was equally intrigued by the reader question that immediately followed.

QUESTION: I understand that I live in Albuquerque and therefore must necessarily be subjected to obnoxious, aging hippies, but I have these neighbors who insist on gardening nude, and whose formidable rolls of almost translucent flesh is a serious distraction to anyone living in a second story or higher apartment within a mile radius of their backyard. Does the law permit me to jump their fence and beat them over the head with a rainstick?
0 Replies
 
sozobe
 
  1  
Reply Wed 28 Jul, 2010 09:19 am
@chai2,
Yeah!
0 Replies
 
OmSigDAVID
 
  1  
Reply Wed 28 Jul, 2010 09:40 am

I was in my backyard garden last nite c.4 AM,
when I saw a parade of 5 naked racoons walking south,
in single file, along the top of a fence.

I deem that surprizing, since I live in Queens County, in NY City.
I guess thay do, too.





David
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Wed 28 Jul, 2010 09:59 am
@ossobuco,
To get people to discuss nudes visible by others and their reactions.

BBB
Diane
 
  1  
Reply Wed 28 Jul, 2010 10:11 am
BBB, sweetie pie, at my age, the mental image is more than I can...bare.
chai2
 
  2  
Reply Wed 28 Jul, 2010 10:34 am
@BumbleBeeBoogie,
oh, well, no I'm not shy. just want to protect my vulnerable parts.

I don't cook bacon naked either.

I don't think I'd pay much attention if my neighbors were naked in their backyard.

Linkat
 
  1  
Reply Wed 28 Jul, 2010 10:37 am
@chai2,
I would if they looked like koolaid man's post - I think it should be restricted to good looking people only.
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Wed 28 Jul, 2010 10:44 am
@Diane,
Diane, you think your age is a bar to nudity? Your smile and good nature would overcome that.

Imagine how I would scare people back in their homes to hide under their beds. BTW, I just weighed myself this morning and cheered when the scale said 169 pounds. I have lost three sizes and trying to clear out my closet. Anyone want some good size 1-X or size 20 clothes?

BBB
0 Replies
 
 

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