Shameless indecency

The latter case of Lockhart v Stephen[16] proved contradictory to the decision held in Watt v Annan. [17] The case involved the accused who had hired erotic dancers to perform at his bar without any prior detailed knowledge of the content of their performances. [18] It was held that because the accused did not exercise the necessary knowledge of the act, to which there was no form of corruption, he could not be convicted of shameless indecency. It was held by the court that they had to adapt to what was now acceptable in the social climate of 1987, 9 years after the decision in Watt v Annan.

[19] 1. The law on shameless indecency has proved to be increasingly controversial over the years. Although McDonald’s statement may have provided a basis for the law, it was regarded as being of unsound nature that was misinterpreted by the courts. However, differentiating decisions made by the courts on this area of law has resulted in the profound intrusion on people’s private lives. Referring to the decision of McKenzie v Whyte[20] it is clear that there could be concern about the law not respecting people’s boundaries and their right to privacy.

The court decided in this case that an individual would be convicted of indecent exposure if the locus was technically a private place. An example of shameless indecency committed on private property can be seen in the case of Usai v Russell. [21] This case involved the accused who had stood naked at the window of his own house, unaware that he was staring at two women who were walking by. The court held that there was no need to show that the accused actually knew his conduct had been witnessed by other persons[22] and therefore he was convicted of shameless indecency.

Lord Gill based his judgment on the effect of the minds of the public as a result of the indecent act that was conducted. For that reason, the decision in McKenzie v Whyte[23] has made it increasingly difficult for individuals to go about their normal private lives. Simply walking past a window naked, unaware of onlookers, could result in a successful conviction. Cases surrounding sexual harassment and shameless sexual conduct have also amounted to the interference on people’s private lives by the courts.

The decision in McLaughlan v Boyd[24] held that regardless of the age and sex of the victim, all lewd, indecent, and libidinous practices were to be classified as criminal. An example of this statement being adopted can be seen in the case of Batty v HM Advocate. [25] This case involved the accused who was convicted of lewd, indecent, and libidinous practices towards five girls over the age of puberty whilst acting as a houseparent. It was held by the court that if the acts committed by the accused were done deliberately then he was to be guilty and there was no need to prove whether his acts were shamelessly indecent.

Victims of sexual harassment often state that they have felt invaded and thus violated. [26] Thus, the victims have experienced an unwelcomed intrusion upon their physical and or emotional private space. [27]In conclusion, the courts intruded on adult private lives where shameless indecency was charged in respect of consensual acts committed in private circumstances, which the Crown alleged to be offensive by reason of the relationship between the participants. [28]Since the sex act is deemed a personal and private matter between partners, it is not for public scrutiny.

[29] The concept of indecent and obscene publications or voyeurism also represents a breach of privacy. The decision in Watt v Annan[30], which was based on McLaughlan[31], held that any form of conduct could be shamelessly indecent, depending on the nature of the conduct, the circumstances in which it took place and the necessary criminal intent. An example of this decision put in practice can be seen in the case of Robertson v Smith. [32] This case involved the accused who had exposed for sale indecent and obscene books and magazines as well as films and playing cards.

The court held that the accused was fully aware of the type of custom he was seeking to cultivate and of the nature of the wares he was offering to the adult public for sale[33] and therefore was convicted of shameless indecency. According to this decision, it could be said that an individual would be convicted of shameless indecency if they proceeded to watch films of an indecent nature within the presence of others who did not feel comfortable in viewing this material, regardless of whether the locus was in a private place.

And so, although it may not be illegal to view indecent material within a private place, it becomes a matter of legal debate when unwilling or underage individuals are forced to watch or are simply in the presence of that material being shown. Thus, encouraging adult’s to be extra vigilant when viewing these publications in their own homes in order to prevent the display of the material to any unwilling individuals.