City Closes Public Nudity Loophole

By a vote of 5 to 2, City Council approved expanding the prohibition of public nudity in the City of Fredericksburg.

Councilmen George Solley (Ward 2) and Matt Kelly (At-Large) voted against the change.

The new ordinance will allow the Commonwealth's Attorney to prosecute cases of public nudity where it cannot be shown that the defendant intended to commit an obscene act, according to Rob Eckstrom, assistant city attorney.

The City Code had only prohibited public nudity by employees of restaurants and similar establishments, according to Eckstrom.

The Virginia Code prohibits indecent exposure, which is essentially defined as exposing oneself with the intention of performing an obscene act, he said.

"The Commonwealth's Attorney [LaBravia J. Jenkins] recently had an indecent exposure case dismissed because although the defendant was nude in public, the prosecutor could not demonstrate that the defendant had performed or intended to perform an obscene act," Eckstrom said in memorandum (attached). "He simply was walking downtown with no pants and no underwear on."

"We really don’t have a significant issue," Kelly said.  "It’s more of a philosophical thing for me," he said.  "If we start making laws based on 'what if, what if,' I don’t think that’s the direction we want to go in. Why are we creating more laws and definitions with more loopholes?"

"We are just trying to prevent this from happening again," Councilor Bea Paolucci (Ward 4) said.  "Enough is enough.  It’s that simple. We are just trying to close a loophole. Let’s just vote on this."

"I do fall down on the side of precaution, it makes sense in the terms of discouraging inappropriate behavior," Brad Ellis (Ward 1), said. "I’ll support it on the second read."

The new ordinance, Ordinance 13-01, is modeled after 30 others in Virginia, which have withstood court challenges, Eckstrom said.

It extends to “all outdoor places owned by or open to the general public, and all buildings, structures and enclosed places owned by or open to the general public . . .”

"The ordinance contains exceptions necessary to protect legitimate First Amendment Activity and breastfeeding mothers," Eckstrom said.

Eckstrom said the case of the naked man downtown was not the only complaint  within the last two years.  "Other recent incidents include a complaint to the police about a man swimming nude in the river (suspect unknown), a woman exposing her breasts to a police officer in Market Square (case not prosecuted due to the lack of lascivious intent), and a complaint to police about a man in the hallway of Riverwood Apartments wearing a shirt but no pants or underwear (no arrest made due to lack of lascivious intent)," Eckstrom said.

The law goes into effect immediately.

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