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

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.