Nudity and the Law in Washington State

Originally posted in my Nude Hiking and Soaking blog on Jan 29th, 2008

A question often expressed in the various nudist forums:

I've hiked in the buff in Washington, but I don't want to worry about
being seen because it's illegal. I've been to Rooster in Oregon and it was
great. But I want woods and trails and legal nude hikes to lakes, rivers
and hot springs. Legal to and from. Any ideas? Sure would appreciate
any help.

Disclaimer: Legal information is not the same as legal

advice . . . the application of law to an individual's specific
circumstances. Consult a lawyer for interpretation and
information appropriate to your particular situation.

"It's Not Illegal, Therefore It Must Be Legal"

I've had many disagreements, with those whose opinions I respect, over
the meaning of 'legal'. In our legal system it is accepted that what the
government does not prohibit (makes illegal by a law, for example), is
therefore permissible and legal. I accept that philosophical
underpinning of our legal framework. Where my problem comes in is
with the confusion and interchangeability of the term 'legal' and 'legal
rights'. Lacking any specific law prohibiting nudity, going about naked
may be legal in the State of Washington but that does not give you a
'legal right' to be nude in this state. Public nudity is not a 'legal right'
anywhere in Washington . . . the term 'legal' implying a codification of a
'right'. On other words, your right to be nude in public is not protected
by law anywhere in Washington State. Please do not confuse the two
terms.

That said, anti-nudity statutes, making public nudity illegal, exist on the
books in many municipal and county areas; so it is prudent to research
and know the laws in developed areas. For practical purposes, it is not a
good idea to go about nude where it is not expected or tolerated within
the city (outside of your own home or secluded property.)

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Municipalities

It is a rare town or city that has not promulgated an anti-nudity

ordinance of some sort . . . or rapidly rushed one into being when faced
with complaints of public nudity. Seattle has had anti-nudity ordinances
in the past but presently doesn't have one, instead relying on the state
indecent exposure law to prosecute nudity within the city limits.

Municipalities may also prosecute simple nudity under various

'disorderly conduct' ordinances. For example, this is Seattle's Disorderly
Conduct ordinance (partial, relevant part):

SMC 12A.12.010 Disorderly conduct.

A. A person is guilty of disorderly conduct if he or she intentionally,

maliciously and unreasonably disrupts any assembly or meeting of
persons and refuses or intentionally fails to cease such activity when
ordered to do so by a police officer or by a person in charge of the
assembly or meeting.

While nudity is not mentioned, note that if you are told by a police office
to put your clothes on and you refuse, you can (and probably will) be
cited for disorderly conduct, at the minimum.

It is important that if you plan on getting publicly nude within the limits
of a municipality that you have a pretty good understanding of what
local law enforcement will tolerate. Festivals and events like
the Fremont Solstice Parade (Solstice Cyclists here) or the World Naked
Bicycle Ride are generally tolerated but if you walk naked as the day you
were born up Main Street in downtown Everett you will end up in jail
post haste!

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County Ordinances

Every county is different on how they approach so-called public morality

laws. Here in King County there is no ordnance prohibiting public
nudity. Complaints of nudity are usually handled under municipal
ordinances (if appropriate) or the state Indecent Exposure laws.

Just to the north, Snohomish County does have an ordinance (10.4.20) )

making public nudity within it's borders illegal. Passed to provide tools
for the arrest of prostitutes and their 'customers', this ordinance has
been used against simple expression of nudity within that county.

Washington State Code

The statute used most often in the State of Washington for prosecuting
cases of nudity (simple or otherwise) is the Indecent Exposure
statute, RCW 9A.88.010 and I'm going to quote part of it here as I think
an understanding of this statute is very important as it affects nudists:

RCW 9A.88.010
Indecent exposure.

(1) A person is guilty of indecent exposure if he or she intentionally

makes any open and obscene exposure of his or her person or the
person of another knowing that such conduct is likely to cause
reasonable affront or alarm. The act of breastfeeding or expressing
breast milk is not indecent exposure.

In order to make a charge of indecent exposure, and to have it stand in

court, all elements above have to be met:

1. An OPEN and OBSCENE EXPOSURE

2. That it was done INTENTIONALLY, and
3. That it likely would cause reasonable AFFRONT or ALARM

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Whether you intentionally get naked with the knowledge that it is
probably going to cause affront or alarm, the expression still has to be
an 'obscene exposure'. There is a lot of confusion even in the law
enforcement community over the difference between what we call
'simple nudity' and 'obscene exposure'. For most police officers, just the
fact that you are nude is often enough for them to consider it obscene
and arrest you . . . leaving it to the courts and prosecutor to sort the
charging elements out. Of course, it costs you time and money, and
sometimes your reputation, to defend yourself.

Much more onerous is that a police officer in the State of Washington

does not need a warrant to make an arrest for indecent exposure . . . just
probable cause and a complaint (RCW 10.31.100: Arrest Without
Warrant). Most misdemeanor offenses are cited and the individual sent
on his or her way with a promise to show up in court. Knowing that
previous arrests for simple nudism under the Indecent Exposure statute
rarely stand up (unless you plea the charge), the police have learned that
as soon as they have one complaint this statute allows them to get the
'offending' person off the street with no repercussions. Immediate
problem solved and the 'perp' is quietly released at the precinct a few
hours later.

One important note on 'pleading the charge': Don't! If you meekly stand
by and accept what the prosecutors and police suggest . . . plead
'guilty' . . . it's just a misdemeanor and a small fine . . . then you end up
with a record for "indecent exposure" AND you could face the
prospect of being labeled a sex offender and be required to
register. Get a competent lawyer and fight the charge!

It should be noted (with limited exceptions) that state law does apply
on federal lands(and I'll discuss that later in this article). If you are
going to be cited and/or arrested because you are nude, it is probably
going to be under the Indecent Exposure statute, RCW 9A.88.010. I've
been told by the King County Sheriff's department that a complaint
must be made by someone alleging affront and alarm; a deputy cannot
be a victim of indecent exposure (aka nudity in their eyes). As the
spokesman states, "I guess the courts have figured we've seen it all."
Lost in most minds is that the exposure must also be 'obscene', a
required charging element for indecent exposure in this state and most
others. Without a complainant willing to testify before the court most

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indecent exposure charges are quietly dropped. Don't be coerced into
admitting guilt.

Obscenity, Community Standards and the Supreme Court

In Washington State the Indecent Exposure statute states "any open

and obscene exposure" as one of the elements for charging. In most
other states, indecent exposure is defined as "exposing one's genitals
under circumstances likely to offend others" following what are called
'contemporary community standards'. The judge (or jury), as Trier-of-
fact, gets to determine what those community standards are. However,
Washington State adds the words 'obscene exposure' which . . . at least
in my mind . . . raises the standard to those defined by the Miller Test of
Obscenity as defined by the Supreme Court.

"While public nudity is objectionable to many citizens, under

Washington state’s Indecent Exposure Law, public nudity in
itself is not illegal. The law specifies that ..." Kenneth R. Bounds,
(former) Superintendent, Seattle Parks and Recreation, responding to a compliant, dated 12
July 2006, about World Naked Bike Ride Seattle

"nudity alone is not enough to make material legally obscene

under the Miller standards." 418 U.S. 153, 161 (1974)

Obscenity, lewd behavior, indecent exposure are relative terms. As one

Supreme Court Justice said, "I know it when I see it." (Justice Potter,
1964) Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)

The current test for obscenity rests with the Miller Test (Miller v.
California, 413 U.S. 15, 24-25 (1973). The Miller Test requires a Three-
Pronged approach for courts to determine whether an act or expression
is obscene:

"(a) whether "the average person, applying contemporary community

standards" would find that the work, taken as a whole, appeals to the prurient
interest, [Roth, supra, at 489,]

(b) whether the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value.

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If a state obscenity law is thus limited, First Amendment
values are adequately protected by ultimate independent
appellate review of constitutional claims when necessary. [Pp. 24-
25.]" emphasis mine

The precedence of the Miller test holds in our state courts (see last para
above). Lacking any patently offensive sexual conduct, simple nudity
cannot be considered 'obscene'.

I'm not telling you to go out and test that defense (well, one, I'm not a
lawyer). Just stating that this is how we need to approach the
conundrum of simple nudity versus those who get nude in public for
sexually-explicit purposes. It is our job as nudists to educate our
politicians and law enforcement departments of the difference between
these two mutually-exclusive activities; gaining wider acceptance of our
lifestyle.

State Parks

Public nudity is specifically prohibited within Washington State Parks

under an overriding state interest and authority of the statute creating
the state park system.

WAC 352-32-100, Disrobing

State DNR Lands

The story behind Washington State Department of Natural Resources

(DNR) land is less clear. The WAC 332-52 (Washington Administrative
Code) does not address nudity on DNR lands, leaving state statute to
apply . . . the Indecent Exposure statute RCW 9A.88.010.

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Federal Lands within Washington State

National Parks

Within federal public lands (the National Forests, National Parks and
BLM lands) the situation is a little more muddied, additionally
depending on the nature of who has jurisdiction. Within the State of
Washington, National Parks (such as Olympic National Park, Rainier
National Park, etc.) retain Exclusive Jurisdiction by the federal
government to where state and county laws are not enforceable or
applied by local law enforcement agencies. Although there is no federal
prohibition against nudity, National Park Superintendents are
empowered to set rules prohibiting nudity within their park boundaries,
enforceable by Park Rangers.

Such is the ongoing up and down situation at Playlinda Beach within the
Canaveral National Seashore in Florida wherein the Park
Superintendent has been influenced to pass prohibitions against nudity
by Brevard County Commissioners. National Parks/Seashores and
Monuments are heavily visited places and like it or not, public nudity is
frowned upon and if it becomes a problem, will have prohibitions made
in the form of 'rules'. Some areas are set aside, or designated. Within our
Olympic National Park, it is accepted that nudity will happen at Olympic
Hot Springs and therefore a sign warning of the clothing-optional nature
of the springs has been posted. I have never heard of a nude soaker
being cited up at those hot springs.

The upshot, in National Parks, is to only get nude in specifically

designated clothing-optional areas . . . or deep in the wilderness where
the matter is moot.

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BLM Lands

Bureau of Land Management lands (under the Interior Department)

also retain exclusive jurisdiction over public domain lands under their
control, although typically they have not made any 'rules' addressing
public nudity within the areas they control. Federal land, wherein the
federal government has Exclusive Jurisdiction, is not subject to the
enforcement of the laws of States or Counties by local law enforcement
personnel. Federal rangers enforce the law, including state laws
assimilated as appropriate.

The Assimilative Crimes Act

*Image is a citation written by a Federal Park Ranger pursuant to Title 18 (13)USC for violation
of NY State Penal Code (245.01-Public Exposure (Nudity)). It is an example of the use of the
Assimilated Crimes Act. No, it's not mine.

Let's muddy this all up a little bit

more. In areas where the Federal
government exercises exclusive
jurisdiction, the Assimilative
Crimes Act allows the feds to
charge you with a Federal offense
under Title 18 for violation of
state law (typically used for motor
vehicle violations on federal park
and forest roads).

TITLE 18, Part 1, Chapter 1, § 13.

Laws of States adopted for areas
within Federal jurisdiction

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National Forests

National Forests in the State of Washington retain 'concurrent

jurisdiction' between the federal government and the state . . . which
means that National Forest land within the boundaries of a county is
subject to state law. National Forest Regions (of which the northwest
(Washington and Oregon) is in Region 6) can also publish rules
prohibiting activities, including nudity. So far, there is no Forest Service
rule prohibiting nudity within the National Forests in Region 6.
However, next door in Idaho, of which the southern portion is in Region
4, there is a Rule prohibiting nudity in the National Forests of that
region.

Since the state retains concurrent jurisdiction, the Forest Service

typically contracts 'cooperative law enforcement agreements' with
counties to patrol and enforce state law within national forest land. King
County, for instance, has a Cooperative Law Enforcement agreement
with the Mt Baker/Snoqualmie National Forest in which a part-time
deputy patrols the Forest Service roads and trailheads during the prime
hiking months (May - Oct). If you are observed nude by a King County
deputy at a trailhead on National Forest land you will be approached. If
there is a complaint (perhaps called ahead by cell phone), you could be
cited under State statutes . . . usually 'indecent exposure'. Since the
jurisdiction permitted is between the State and the Federal government,
local law enforcement officers can only enforce state laws; not local
county ordinances.

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Does this mean I can't hike nude?

Not at all! Just use some commonsense when hiking. Local sheriff's
checking the forest service roads and the trailheads under a cooperative
LE agreement are not going to hike any respectable distance up a trail
unless there is compelling reason to do so. They are patrolling to insure
safety on the back roads and trailheads . . . while we enjoy the back-
country. If there is a serious crime reported in the wilderness (the Mt
Pilchuck murders in July of 2006, for example) you can expect deputies
to be all over the trail. But they 'ain't' gonna hike in there to arrest a
hiker enjoying the wilderness au'natural . . . unless there are complaints.

Most people in the backwoods don't care . . . or have skinny-dipped or

hiked nude themselves. It's a mindset of the type of people who like to
get more than a few miles into the forests and mountains . . . easy-going,
let others be themselves. Most rangers take their jobs because they are
of this same persuasion. At Olympic Hot Springs a Parks LE Ranger and
his wife are frequent nude soakers in the springs. Rangers have more
pressing jobs to deal with than naked hikers.

But Which Trails?

• Consider the popularity of the place you want to hike. If it is very

popular (say the Tonga Ridge Trail if it ever reopens), then you are
going to run into the urban hikers who transplant their city
thinking into the woods once or twice a year.
• Is the trail popular for families with children? Parents get very
protective around their children. Likewise, do not hike nude
through a campground where others may be suddenly startled.
• Hike on a weekday. Trails get less use on a weekday and you can
usually tell at the trailhead if there is anyone else on the trail
ahead of you.
• Avoid 'loop' trails and those trails with trailheads at both ends.
You're less likely to come upon a hiker from the opposite direction.
• Wait until you are well on the trail before stripping down. The
problematic people will not hike much more than a couple of
miles before turning around. Try to avoid hiking nude from the
trailhead unless you are reasonably sure you have the trail (and

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 the trailhead) to yourself. Consider that the Forest Service is
considering installing cameras at popular trailheads to cut down
on vandalism.
• Hike with your senses attuned for approaching hikers. Popular
trail and the sight-distance ahead is suddenly gone? Consider
putting on a pair of shorts . . . at least until you can see where
you're going on the trail ahead.
• Confronted? Grin and Bare It. Most people don't care. Many wish
they had the guts to hike nude. Some will even strip down the
moment you pass them and enjoy nature, likewise.

Perhaps the best way to break into nude hiking and benefit from the
confidence and knowledge of others is to join a Nudist Travel Club such
as the S.L.U.G.S. (or Sun Lovers Under Gray Skies . . . in reference to the
constantly overcast skies up here in Seattle). A travel club is often
focused on public lands nudism and the members are familiar with trails
that are amenable to hiking nude.

If you are not already a member of the Association for Nude Recreation
(AANR) or The Naturist Society (TNS), consider joining one or the
other . . . or both! These two organizations advocate for venues where
we can be nude and offer excellent resources and support should you
ever need.

So get out there and get nude.

Quit worrying so much.
Just use common sense.

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