Section 118 of the German German Act on Regulatory Offences specifies three preconditions, which must be fulfilled, in order that a deed might be classified as a regulatory offence. This article determines, that hiking in the buff (or a similar naturist activity) does not fulfil any of the three mandatory preconditions.
German Act on Regulatory Offences contains in section 118 a little precise, very interpretable wording:
Whoever commits a grossly offensive act which is apt to disturb or endanger the public and to prejudice public order shall be deemed to have committed a regulatory offence.
Increasing popularity of hiking in the buff often causes, that uninformed citizens call the police or regulatory authorities to inquire, whether hiking in the buff is permitted at all. However, even officials of regulatory authorities or police spokesmen now and then give the wrong information "If someone feels bothered, we will intervene!". In fact, it does not matter if someone feels disturbed. All three preconditions mentioned in section 118 must be fulfilled.
The act of a hiker in the nude is the hiking. Hiking is certainly not improper. Thus, an impropriety can be justified only in the fact, that you hike in the nude. To be in the nude is a state and not an act, but lawyers sometimes also conceive a state as an act. In order to proceed, we now take a state of being nude as legally understood as the act of of being nude.
Concerning nudity, the Catholic Church has stated in the current fundamental work on Catholic Social Ethics, “Love and Responsibility” by Karol Wojtila, more well-known as Pope John Paul II: “Because God created it, the human body can remain naked and uncovered, and retains untouched its splendour and beauty.” Where the Church speaks of splendour and beauty, the German society based on Christian values cannot see it as a grossly impropriety, even not a simple impropriety!
Furthermore, the Catholic Church explicates to nakedness: “Indecency is only given, when nakedness plays a negative role in relation to the value of a person.” Naturists take all care for man and nature. They respect every person in their personal individuality and will never measure the value of a person on a physical property or on whether or which clothes (s)he wears. In the sense of Christian norms, the nudity of a naturist is thus in no way pejorative and therefore neither indecent.
The Catholic Church thus states, that naturist nudity is not indecent. The term “grossly offensive” in the Act on Regulatory Offences is from the point of the language an intensification of the term “offensive”, this again an intensification of the term “indecent”. Thus, because nudity cannot be indecent (according to the Catholic Social Ethics), so nudity, a fortiori, cannot be offensive or even grossly offensive.
Is hiking in the buff apt to endanger anyone at all? This depends certainly on the location of the proceedings. If nude hikers sojourn in a traffic-congested place, a hazard (for individuals, not for the general public) can be, that drivers are distracted in their attention for road traffic. The blame for eventual accidents is still upon the inattentive car driver, but the naturist could have been contributed to the hazard.
Human anatomy should not be a secret to anybody. It is also not dangerously, to get to know this anatomy, even if there is someone, who does not know it yet. Children even have to learn it, at the latest at the kindergarten or at school. Nevertheless, citizens often mention children to be the cause of their care.
The British philosopher Bertrand Russell – one of the greatest minds of the 20th century – recognised: “So long as parents are unwilling to be seen naked by their children, the children will necessarily have a sense that there is a mystery, and having that sense they will become prurient and indecent.”1) A danger for children to become prurient and indecent does precisely exist, when they are not get the chance to see nude people.
Of course, parents have the right to care for their children, and they may decide if, when, and in which form they teach the human anatomy to their children. Nevertheless, seeing nude persons does not cause any danger, and adults should be able to find answers to any questions that children may have.
We have already concluded, that hiking in the buff in nature does not endanger anybody, especially not the public.
However, since the term “endangerment of the public” is quite capable of interpretation, legal examples for the use of this term are to be cited here:
- Criminal Code, section 68c “Period of supervision of conduct (gesetze-im-internet.de) states:
“[…] if there is reason to believe that there is a danger to the general public on account of that person committing further serious crimes. If, in the cases under sentence 1 no. 1, the convicted person subsequently consents, the court determines the further period of the supervision of conduct. […]”
- Judgments known so far, that deal with the endangerment of the public, do not deal with nudity at all.
- In the judgment “Beschluss vom 30.10.2014 - BVerwG 2 B 109.13” (bverwg.de) of the Federal Administrative Court concerning a former police officer convicted of violent offences, the reasons given for the judgment state:
“[…] The further activity of the plaintiff as a police officer leads to a considerable endangerment of the general public, because it damages the reputation of the police. […]”
- The Bundesgerichtshof [en: Federal Court of Justice] speaks in the judgment “Bundesgerichtshof Urt. v. 25.02.1954, Az.: 1 StR 633/53” (wolterskluwer-online.de) of:
“[…] Realisation of the danger to the general public in case of driving disqualification […]”.
Particularly often, the concept of “endangerment of the public” is used as reason for preventive custody for sexual offenders, especially if the contraveners show no remorse and reject therapies.
Common to all utilisations of the term “endangerment of the (general) public” in legal practice is, that it describes a serious, latent danger to the life or physical condition of one or more people – but simple nudity, as it takes place in a nude hike or an athletic activity in the nude, does not cause any (serious) danger at all.
Therefore, simple nudity does not fulfil the condition of “endangerment of the (general) public”.
1) Full cit.: “The taboo against nakedness is an obstacle to a decent attitude on the subject of sex… It is good for children to see each other and their parents naked whenever it so happens naturally. There will be a short period, probably at about three years old, when the child is interested in the differences between his father and his mother, and compares them with the differences between himself and his sister, but this period is soon over, and after this he takes no more interest in nudity than in clothes. So long as parents are unwilling to be seen naked by their children, the children will necessarily have a sense that there is a mystery, and having that sense they will become prurient and indecent. There is only one way to avoid indecency, and that is to avoid mystery.
• Ch. 8, p. 116”
Bertrand Russell, mathematician, pedagogue and philosopher, England
in his book Marriage and Morals (1929),
cited from wikiquote on Marriage and Morals, ch. 8, p. 116*).
The website rechtslexikon.net provides this definition (in German):
“Disturbance of the public through a grossly offensive act is an offence according to section 118 of the Act on Regulatory Offences, if it is likely to disturb the public order. The act must be capable of directly disturbing an indefinite majority of persons. On equal terms is an endangerment of the public. The disturbance of the public order may, for example, be caused by causeless alarm of police or firefighters, traffic disturbance, disturbance of an allowed movie screening. The intent of the contravener must include the impropriety as well as the ability for disturbance or endangerment and for disturbance of the public order.”
However, this definition is, indeed, not a definition. It just repeats (slightly more detailed), which is in the legal text anyway. Only the last sentence states, that the act is only a regulatory offence, if it is about the intent of the contravener.
Nude hikers and sportspersons have however not the intent of the impropriety and not the intent, to endanger or to disturb the public, and not the intent, to disturb the public order. They have the intent, to move in nature in their natural outfit and to feel and behave as part of nature.
The wikipedia (in German) lists the following examples as “disturbance of the public”:
- Walking in swimming trunks in the courtyard of a spa house
- Defecate on the street
- Splashing the passersby by driving too fast through a puddle
- Disturbance of a movie screening that is allowed
- Lewd fingering of another
- Cries for help (fire!) without danger
- Untrue press releases that may cause public concern
- Joking, but untrue hint at an airport check for a supposed bomb in the luggage
- Disturbance of an official vow of the Federal Army
It is noteworthy, that the “public” can already be represented by a small number of people – in the case of cars causing splashing, probably only a few people are affected, in the case of lewd fingering probably only a single person.
Forum juraforum.de concerning legal topics states a general definition of disturbance:
“In the broadest sense, disturbance refers to the lasting influence of one or more subjects (e.g. a person) or objects (a thing) on one or more subjects (e.g. the target person), whereby it is fundamentally decisive, that it is perceived by the victim as affecting or damaging.”
So, now it is clear: The concept of disturbance (as well as that of an libel) presupposes an active action with intent, which affects other people undesirably. The mere possibility of the sight of an otherwise inconspicuously behaving person in the nude does not cause such an active action with intend with the goal of disturbance.
On the basis of the cited examples, indeed, it remains to be stated, that the facts of a case of "disturbance of the public" are particularly difficult to grasp, and that it could be possible, that a conservative judge might judge, for example, hiking in the nude as such a "disturbance of the public". However, the lack of active action with intend with the goal of disturbance can always be used as a very strong argument against such a possible judgment.
So, it is clear: Simple nudity does not even cause a "disturbance of the public".
Already, the previously cited definition concerning “disturbance of the public” contains examples, of what a “disturbance of the public order" might consist: “e.g. in causeless alarm of police or firefighters, traffic disturbance, disturbance of an allowed movie screening.”
Here, however, the question arises, whether the nude hiker with her / his activity in the nude is to be regarded as the (wilful) trigger of an unnecessary call to the police, or whether the source is to be seen in the calling fellow citizen's lack of awareness of the custom of hiking in the buff. Since the hiker in the nude does not act actively and with intent to disturb the police work, the first alternative is to be discarded. Solely, the caller is responsible for his unnecessary, disturbing calls to the police due to his unawareness and his fantasised and unfounded guesses.
It is therefore clear, that simple nudity does not fulfil the criterion of “disturbance of the public order”.
Thus, all preconditions 1. to 3. of section 118 of the Act on Regulatory Offences are not fulfilled, i.e. simple nudity is no offence.
Public order is disturbed according to a judgment of the Higher Regional Court Karlsruhe but then, if naktivities within built-up area are carried out (in the then case, jogging in the nude within the city of Freiburg). We assess the special conditions in built-up areas in Local governance law article. For the rest, the ruling of the Higher Regional Court Karlsruhe in 2000 is anyway a special case, which we discuss separately in the Case law article.
An article “Nacktwandern ist keine Belästigung” (wn.de) [en: “Hiking in the buff is not a disturbance (of the public)”] of Regional newspaper newspaper Westfälische Nachrichten cites on 18 October 2018 a statement of a police spokesman: “‘As unusual as some people may realise this leisure activity, enjoying nature in this way is quite legitimate. Hiking in the buff is not a punishable criminal offence’, police spokesman Rolf Werenbeck-Ueding explained on WN's request. ‘Under certain circumstances, it could be at most an administrative offence.’”
The responsible head of department of Senden also opines that view. The newspaper WN: “Stefan Vorspohl confirmed: ‘According to the law, hiking in the buff is not a disturbance of the public. As long as you only hike, there is no reason, to take action against it’, the responsible head of department ‘Civil Service and Order’ in the townhall of Senden summarised the legal situation.”