McKenzie v Whyte (1864) 4 Irv 570
Citation: McKenzie v Whyte (1864) 4 Irv 570
Link to case on WorldLII (reference).
Rule of thumb: If you take your clothes off in a place in the wilderness where you would not expect to be seen is this criminal indecent exposure? No, if there was an expectation of privacy in the place it is not indecent exposure.
Judgment:
'did ... wickedly and feloniously, expose their persons in an indecent and unbecoming manner, and did take off their clothes and expose themselves ... in a state of nudity, to the annoyance of the lieges... "Now, is that the offence against private persons which we know under the general name of lewd and libidinous practices? It cannot be that. On the other hand, is it that offence against public morals, which consists of a person exposing himself in a state of nudity, or partial nudity, in a public place, or where he can be seen by a multitude of people? There is nothing within the four corners of this complaint to justify us in supposing that the place which these persons selected for undressing themselves was a place where they might naturally expect to be seen by anybody whatever. It is said that they were in the neighbourhood of Brechin Castle; but it is not said that that house was inhabited, or that the place was in itself otherwise a place of public resort, or a place that could be seen from any place of public resort. It is not said that any persons were there and saw the accused; and I think, therefore, it clearly does not amount to that offence against public morals to which I have referred, which consists of the exposure of the person in a reckless and indecent way, so as to be seen by a number of people in some public place" (Lord Justice Clerk Inglis)
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