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Hawaii Beaches
Nudity is illegal at state beaches in
Hawaii, according to state park regulations. That's the
official position of the State of Hawaii, however, as is
often the case, nothing is that simple. The fact is that
there are beaches that are well known as "nude",
"topless" or "clothing-optional" in Hawaii.
There is also some question as to whether
nude sunbathing or swimming is actually illegal in
Hawaii. Dr. George R. Harker, a former professor at
Western Illinois University and nude enthusiast based in
Hawaii wrote an interesting overview of a court case
addressing these issues in his article, "Is it Legal to
be Nude on a Nude Beach in Hawaii?"
IS IT LEGAL TO BE NUDE ON A NUDE BEACH IN
HAWAII?
Dr. George R. Harker/
Maui, Hawaii
A recent ruling by the Supreme Court of
Hawaii suggest that indeed it
just may be, or at the very least it is
not indecent exposure under
Hawaii Revised Statutes.
On October 18, 1998 six men were arrested
for being nude on Polo
beach at Makaleha Beach Park. A beach
popular on Oahu as a nude
beach. All were charged and convicted of
violating HRS 707-734
renamed Indecent exposure and redefined
in 1993. HRS 707-734
Indecent exposure. (1) A person
commits the offense of indecent
exposure if, the person intentionally
exposes the person's genitals
to a person to whom the person is not
married under circumstances
in which the actor's conduct is likely
to cause affront.
The Circuit Judge found the men guilty as
charged. Reasoning that
anyone coming across these individuals on
the beach could be
affronted. The Judge said, "I don't have
to have testimony before
me from the policemen that they were
affronted. All I have to do is
have the facts before me that would
indicate that a reasonable
person under the same circumstances could
and would be affronted
by it." Apparently, according to the
judge it is young children and elderly persons which are
particularly prone to be affronted by
beach nudity.
Well, the Supreme Court didn't see it
quite the same way. It reversed the convictions of the
four who appealed on September 29, 2000.
A brief review of their analysis should
yield insight into whether nude sunbathing in Hawaii is
legal or illegal and whether it is indecent exposure or
not. The Court noted that the exposure of genitals had
to be
"intentional" and with a conscious
object to affront the other individual. It was also
important that the person not be married
to the person doing the exposing.
 Under
state law their are four states of mind; "intentional,
knowing, reckless and negligent." In this
regulation the operative state of mind is intentional,
nothing more and nothing less.
The Supreme Court had trouble with the
idea of "intentional" because the other individuals
were also naked and it didn't make any sense that the
individual was trying to cause alarm to any of the other
persons on the beach. The Court also noted that the act
had to be directed to some specific person, not someone
who might or might not happen along. Clearly whether the
police were affronted or not was immaterial.
Some mention was made of a legislative
committee report which stated, "The newly titled section
is intended to deal with behavior such as nude
sunbathing or streaking, that does not cause alarm
or fear of bodily harm, in circumstances
where it is likely to be an affront to a substantial
part of the community." (Sen. Com. Rep. No. 1000, in
1991 Senate Journal, at 1103.)
The Court took the position that the law
was very clear as to what it meant and to bring in other
interpretations not self evident would lead to
constitutional questions best left out of the picture.
The real crime in this story is the cost
in money and energy to those arrested. It took two years
and thousands of dollars for the court to make the
determination that should be self evident
to any public prosecutor with a minimal
amount of intelligence.
Some of the funding for the appeal came
from the Naturist Action Committee and the
Naturist Education Foundation. The NAC web site is
http://www.naturistsociety.com/NAC. If you want to
read the opinions of the Hawaii Supreme Court for these
cases, go to the site and click on "Links and Resources"
and look for "HAWAII v. MILFORD" and "HAWAII v KALAMA."
http://nef.oshkosh.net/Toni_Egbert_Library/Selector/State_Supreme
_Courts/HI_v_Milford/hi_v_milford.html
http://nef.oshkosh.net/Toni_Egbert_Library/Selector/State_Supreme
_Courts/HI_v_Kalama/hi_v_kalama.html
Ironically the closing of
Kaloko-Honokohau beach to clothing optional use was
challenged in Federal Court and the Judge used the idea
that State of Hawaii regulations prohibit nude
sunbathing as the basis to allow the
National Park Service to violate its own procedures in
that closing. It is interesting to note that the people
whose convictions for nude sunbathing were all local and
lived on the island. Yet the fact of the arrest was not
lost on the tourist. The islands of Oahu and
Hawaii both suffered a decline in visitation in 1998. It
appears to be self evident that the decline was directly
attributed to the anti nude sunbathing and ocean bathing
activities of individuals.
Can one legally sunbathe nude in Hawaii?
Clearly the answer is yes as long as you don't have an
attitude and are trying to intentionally affront
someone. Because of the 1993 change in wording your
appearance may "alarm" someone, it just may not affront.
Remember also that the operative word is
"intentionally." It is not your fault if you are well
endowed and the mere site of it makes people shudder.
In a Concurring Opinion by Ramil, J.,
the Justice goes out of the way to note that the,
"majority's analysis does not yield a result apparently
inconsistent with the legislative purpose and design
of Hawaii Revised Statute (HRS)
707-734(1993)." The Opinion of the Court by
Acoba, J. alluded to the 1991 legislative committee
report which talked of prohibiting nude sunbathing and
streaking and decided that such language didn't apply to
all nude sunbathing. So in conclusion, if you want to
get naked in Hawaii the key is go to an established nude
beach and join those already there. An
established nude beach is one mentioned
in a guide book and/or established by local use. There
are quite a few in the islands. With the clear decision
by the Supreme Court of Hawaii my guess
is that there will be a lot more beaches
established in the months ahead. Hawaii has a long
tradition of nude bathing that predates the tourist and
the missionaries. Many would like to see this aspect of
the local culture returned.
--Writer Dr. George R. Harker can
be reached
by email at
drleisure1@aol.com.
Article may be reproduced with
appropriate credit:
drleisure.com
Copyright 2000, Dr. Leisure
©Copyright 2000 Dr.
Leisure. All rights reserved.
Dr Leisure
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Hawaii beaches
Nudity is
illegal at state beaches in Hawaii, according to state
park regulations. That's the official position of the
State of Hawaii, however, as is often the case, nothing
is that simple. The fact is that there are beaches that
are well known as "nude", "topless" or
"clothing-optional" in Hawaii. |
 |
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