Appealing and Unappealing Peeling: Two Takes on Nudity

Posted in: Constitutional Law

Recently, two stories involving the naked human body found their way into the news. The first concerned a sexting scandal, involving hundreds of high school students in Colorado and hundreds of naked photos making their way from cell phone to cell phone. The second involved no scandal, but rather a seemingly simple issue about how to design locker rooms for millennial men, so as to give them a way to shower and change clothes “without actually being nude.”

What are we to make of a generation with two such seemingly contradictory impulses—to share explicit images freely and with no control over where they end up, on the one hand, but to demand almost complete privacy when cleaning up after a workout, on the other. Can these stories be reconciled?

Adventures in Sexting

This fall, at least a hundred high school students in Cañon City, Colorado were engaged in a “sexting ring,” trading naked pictures of themselves—there were some 300 to 400 nude photographs, apparently showing more than a hundred different kids. Sexting—an obvious blend of the words “sex” and “texting”—is a term invented to describe the act of sending nude or sexual images by cellphone. By all accounts, this behavior is common, even among younger teenagers.

In the Colorado scandal, members of a local high school’s football team were apparently the sexting ringleaders. Some students were more desirable (naked, of course) than others and, by the rules of the ring, students gained points if they had these desirable kids in their collection of photos. When the news broke, there was a huge uproar in town; big community meetings were held, the team forfeited a football game, and there was even talk about police action. Were some of these students guilty of violating laws against child pornography? The high school students were, after all, minors.

What seems clear is that this Colorado town is not the only place where high schoolers indulge in “sexting.” In New York this November, two teenage boys were arrested in another sexting scandal. The charge was that students in the Kings Park school district had filmed and distributed a “sexually explicit video.” The boys in question were 14 years old. One of them did the dirty deed, the other one filmed it, and the video was later disseminated. In this case, there was police action: the two boys have been hit with felony charges. Other students, those who received the video, or shared it, were suspended from school.

Sexting raises a number of legal issues. First, and foremost, most sexually explicit images of children meet the definition of child pornography, and it is a crime to create, possess, or disseminate such images. This is so even if the perpetrators are themselves minors. As parents today should be instructing their children, a naked picture you take of yourself may still be considered child porn. And if you take the photo, possess it on your cellphone or computer, and send it to at least one other person, you have likely committed three felonies.

Prosecutors in many states have had to figure out how and whether to charge minors. A felony charge – which the letter of the law seems to dictate in many cases – can result not only in confinement and other forms of serious punishment but it can also mean putting a person on a sex offender registry, which has serious and lifelong repercussions. In response to some instances that raised awareness of this problem, several states have adopted laws specifically targeting sexting—designed to make the punishment better fit the crime. For example, in Utah, one of the first states to enact a sexting law, the usual penalty for possession of child pornography is reduced to a misdemeanor for teen offenders, and the definition of offending images is narrowed so that not all naked pictures qualify. Many other states have followed Utah’s lead, with statutes that define sexting as a crime, but either reduce or change penalties for minor offenders. Vermont’s law criminalizes possession of all nude pictures of children, but gives first-time teen offenders a free pass.

Sexting prosecutions have also raised First Amendment issues—when people share images of themselves—and Fourth Amendment issues, particularly when schools collect and search cellphones in the effort to find evidence of sexting. In Miller v. Mitchell, the Third Circuit Court of Appeals held that police could not force students to attend an anti-sexting program, which would have required role-playing and discussions of morals and values, as an alternative to being charged with possession of child pornography. Parents of the offending teens objected to the government’s use of coercion to force their children into a broad-based program. The court agreed that coerced involvement in the program violated the parents’ constitutional rights to make decisions about their children’s upbringing and infringed on the minors’ right against compelled speech.

The law of sexting is far from settled, but the practice raises cultural issues that are at least as interesting as the legal issues. It seems to reflect, among the young people who share these images, almost a wanton disregard for privacy—their own as well as that of others.

A Little Privacy, Please

The other story seems, on the surface, quite different—even contradictory. It dealt with the issue of how to design locker rooms for men. According to a recent article in the New York Times, architects are being hired to redesign gym locker rooms to create more private spaces for showering and changing. Have times changed?

For boys in high school, it seems, the idea of taking a shower after gym class “became virtually extinct in the ‘90s.” For “old-timers,” say, men over 60, showering in the nude with other guys was simply no big deal. But that was then. Young men today—the millennials—apparently want total privacy. These young men have perfected for themselves a kind of ritual dance in locker rooms and at poolside, the point of which is to squirm safely into underwear or shorts without dropping the towel that covers their precious private parts. The head of a gym was quoted in this article as saying that young guys were “more socially open with everything” but “more private in their personal space”–especially so, it appears, when it is a question of naked bodies in the shower.

Privacy in Context

So, on the one hand, we have young people who openly, boldly, and without a trace of embarrassment, share images of their body with each other—boys and girls equally, apparently. Yet the same young male high school students have given up on the idea of taking a shower after physical education classes, because (it seems) nakedness in (semi) public is embarrassing to them. How do these two stories fit together? And how does the account of high school squeamishness meld with the so-called sexual revolution, the current attitude of permissiveness, and the open acceptance of all kinds of sexual behavior, some of which would have shocked these young peoples’ great-grandparents, and some of which were actually at one time crimes under the law?

All of this may be less paradoxical than it seems. If you go back a century and a half to the high Victorian era, nudity of any sort was of course totally taboo. There was a vigorous sexual underground, to be sure, but one has to stress the word underground. Social surfaces were prudish to an amazing degree. Pornography was banned and distributing obscene literature was a serious crime. Forms of fornication and adultery, not to mention same-sex relations, were prohibited by law. Newspapers, magazines, and books carefully avoided anything that smacked of explicit discussion of sex. If these were the sole source of a reader’s information, the reader would have no real idea where babies came from. A reader would learn that babies happened to married people for the most part, but through some sort of mysterious, indescribable, and unmentionable process.

Nudity was not only taboo but unusual. Remember, this was the age before modern plumbing; common people rarely bathed and rarely took off their clothes. The separate bathroom does not make its appearance before the late 19th century. Only the rich could bathe at home. Ordinary people, who lived in crowded tenements, or in rural cottages, had no such luxury. Baths were not even thought to be healthy. In George Bernard Shaw’s famous play, Pygmalion (1913), later the source of the musical My Fair Lady, Eliza Doolittle, the lower-class flower girl, gets taken to the upper-class home of Professor Higgins, where she screams at the very ideas of taking a hot bath and getting undressed—something she had never done before. In the bathroom, she is horrified by the presence of a mirror, where she could see herself naked. To prevent this dreadful possibility, she covers the mirror with a towel.

In our day, nudity is closely associated with sex. But in the past, many or most people had sex without nudity, exposing only so much of the body as was absolutely necessary. The Kinsey report on the sexual behavior of men (1948) and of women (1953) confirmed this: even in the middle of the 20th century, less than half of the men who never went beyond grade school were nude during intercourse; and a third of the older women told the researchers that they kept most of their clothes on during sex. This was simply viewed as the decent thing to do.

What changed general attitudes toward the naked body? Probably a whole cluster of factors. But surely one of them was modern sanitation, encompassing bathrooms, stall showers, and the revolution in personal hygiene. It would be too much to claim that this hygiene revolution was what led to the sexual revolution, but surely it had at least a cameo role, a walk-on part. When people became used to their own naked bodies, the naked body as such became less taboo.

At any rate, in our times, nudity has a complex position in the law. Most people think it is a crime to go about naked in public. But this is far from clear. John Brennan, annoyed by the process of security screening at a Portland, Oregon airport in 2012, lost his cool and stripped off every stitch of clothing. The police arrested him, handcuffed him, and dragged him off. But the case was dismissed in court; he had not in fact violated the law. Public nudity is a crime in Oregon only if done with the intent to sexually arouse oneself or onlookers—and this was hardly Brennan’s intent. As we have discussed elsewhere, public nudity laws are generally less restrictive than people assume. Many of them prohibit only “lewd” nudity, as opposed to simple nudity. And the fact that women are permitted to go topless in many places seems always to catch people by surprise, including, sometimes, the police. A recent showdown in New York City’s Times Square made this gap between law and expectations quite apparent.

From the 19th century on, there was a nudist movement. Nudist colonies are legal, and nude beaches can be found in many states, untroubled by police interference. Of course, as John Brennan’s case illustrates, there are certainly risks, beyond frostbite in winter, that attend anyone so bold as to shed all clothing in public.

Nudity has been normalized—in part at least. And, apparently, the younger you are (and the bolder), the more it is normalized. There is also, obviously, a great deal more consciousness of sex, depiction of sex, and discussion of sex in the press, in movies, on the Internet—basically everywhere–material about sex, and depictions of sex, are also extremely easy to access. An adolescent today is probably miles more sex-smart than an adolescent in the Victorian age. There is the joke about the father who sits his teenage son down, and says, I’d like to talk to you about sex; to which the boy answers, sure Dad, what is it you want to know?

Along with awareness of sex positions, abortion, contraception, and STIs, there is awareness of the fact that not everybody is straight, that a proportion of any population can be assumed to be gay. Not that this was news to everyone in the past, but open discussion of the subject was at one time completely taboo. The Hollywood Production Code forbade any film from so much as mentioning same-sex behavior. Adolescents today, on the other hand, see gay people in the movies, on television, and on the Internet; they know about gay pride parades, they hear about gay marriage and gay adoption, and they are much more likely to know personally someone who is openly gay. Gay youth come out at much younger ages, and schools have formal clubs that revolve around LGBT issues.

The younger generation, moreover, is much more accepting of different sexual lifestyles. Legal change here, as usual, followed changes in social facts and social attitudes. State after state ultimately wiped the sodomy laws off their books. In 2003, the Supreme Court undid the surviving statutes, declaring them constitutionally imperfect in Lawrence v. Texas. States cannot criminalize non-commercial sexual expression between consenting adults. Then same-sex marriage followed in 2015, with the Court’s landmark ruling in Obergefell v. Hodges. There has been, and continues to be, strong resistance, but every survey finds that age makes a difference: the young overwhelmingly approve of these legal developments, much more so than the older generation.

But the success of the gay rights movement has had at least one paradoxical result. It fueled the awareness and perhaps the sensitivity that led to the extinction of the high school shower. Women, probably, are less sensitive than men about nudity in front of other women. They are more willing to troop to the bathroom in twos and threes, and they seem unconcerned about the danger of being leered at by other women. Yet the guys seem different. Apparently, a high school student may think it okay to send a naked selfie to a girl friend or a buddy, but at the same time be totally disconcerted at the thought that some guy in the shower might be staring at him, or checking him out.

Or perhaps privacy today comes down to choice: we choose when to reveal the naked body and when to conceal it. People who go to nude beaches, or even patronize nudist colonies, would never undress on the street or, like Brennan, at the airport. Certainly, nudity is the situation of choice for sex. But choice is the key. It is a choice of when—and in front of whom. The men’s locker room, full of strangers, doesn’t make the cut.


Were the Colorado kids guilty of a crime? Were they child pornographers—at least technically under the law? The idea seems far-fetched; most of us would consider the students simply foolish, maybe reckless, maybe heedless of consequences, but not serious criminals. And a reader might ask: why, in this permissive age, are child pornography laws so harsh? There were no such laws in the 19th century; all pornography was forbidden. But in an age that has, in essence, made pornography legal, and in which you can find it everywhere, where it positively saturates society, protecting children from the corrosive effect of the flood of pornography came to seem necessary, in ways that were not needed in the Victorian period. Parents today realize that their children will become savvy about sex at a fairly early age; but they hope not too early, and they want their children kept safe from sexual predators, just as they want them safe from drug pushers and other evil influences. The world, in short, is a more permissive place, but by the same token, more dangerous. This too is a kind of reflex of the sexual and sexual-legal revolution.