The Flasher Effect – Talking About Sexual Exposure

If you were watching the ARIAs on the 28^th November, you may be aware that Kirin J Callinan exposed himself on the red carpet before a media wall. A similar incident involving Axle Whitehead occurred in October 2006, and resulted in his immediate sacking from Channel Ten. The actions of these individuals could amount to an offence of ‘sexual exposure’. If you have been charged with sexual exposure, you could be liable for a criminal conviction. There are some defences available to you, depending on the circumstances of your case.

The offence of Sexual Exposure

Sexual exposure is an offence where an individual intentionally exposes their genital area in a sexual manner, within public place or within view of a public place.[1] The legislation defines a ‘public place’ as a road or highway, railway station, jetty, park or garden, church, school, hall, markets, recreational grounds (including cricket or football grounds), or other open public space.[2] The Prosecution must prove an intent to expose oneself or engage in ‘sexual’ behaviour.[3] Sexual behaviour is defined as one which is offensive and contrary to community standards.[4]

There are four elements to the offence, namely:

1. Exposure (to any extent) of the genitals;
2. An intention to expose (to any extent) one’s genitals;
3. The exposure is sexual; and
4. The exposure in, or is within the view of, a public place.[5]

The offence carries a maximum penalty of 2 years in prison.[6]

Possible Defences

There are several defences that you can raise to this offence, relevant to specific facts of exposure, a lack of intention or an honest and reasonable mistake. It is a defence to argue that the exposure was not in a public place or in view of a public place. [7] A further defence can be raised to suggest that only partial, as opposed to full, exposure occurred.

Another defence is that the exposure was based on a mistaken, but honest and reasonable belief that the exposure was not within a public place. For example, a mistaken belief that exposure on private land was not able to be viewed from a public place could be a defence. The definition of ‘public place’ includes somewhere which is in view from a public place.  A window of a hotel or private residence in direct view of a public beach may be considered to constitute a public place.

You also have a defence if the exposure was not contrary to community standards and therefore does not amount to sexual exposure. However, it is not a defence that you were under a mistaken belief that the exposure was of a sexual nature.[8]

Unintentionally exposing ones genital area is a defence to the charge of sexual exposure. It is also a defence if you were coerced into exposing yourself, or did so under duress, or whilst suffering from a mental impairment. This is because the intention or ‘wilful’ element of the offence cannot satisfied.

You may also have a defence of reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Summary Offences Act 1966 (Vic) s 19.
[2] Summary Offences Act 1966 (Vic) s 3.
[3] R v Towe 1953 VLR 3.
[4] R v Close [1948] VLR 445 (FC) @ 463.
[5] Summary Offences Act 1966 (Vic) s 18 (1).
[6] Summary Offences Act 1966 (Vic) s 18 (2).
[7] Summary Offences Act 1966 (Vic) s 18 (4).
[8] Summary Offences Act 1966 (Vic) s 18 (3).