Note: This is not legal advice. If you need legal advice, consult an attorney.
HAWAI'I LAW OVERVIEW
Female Topless is legal wherever Male Topless is legal throughout the State, except in State Parks where their archaic No Nudity rule dictates unconstitutional sex discrimination. Even where it is legal you could experience harassment by bigots and the need to politely educate police officers.
Ask the Mayor His answer applies to County beaches, not State Parks.
Full Nudity on beaches is “conditionally” legal throughout the State, except in State Parks where their archaic No Nudity rule makes it illegal. The conditionality of State law makes it advisable to bathe and sunbathe on beaches where nudity is traditionally practiced (unless you are a pioneer, well versed in the law).
Little Beach has been “The Nude Beach” longer than the DLNR has existed. From 1987 to 2020 the DLNR did not enforce its No Nudity rule and the State Parks website advertised that on Little Beach nudity was tolerated by local law enforcement. For 33 years no harm was done by nudity. The No Nudity rule has been proven to serve no purpose. However, in 2020 the DLNR started issuing arbitrary nudity citations. In March 2021, after their illegal 9 week beach closure, when several new and prominent No Nudity signs were installed at the beach, 6 nudity citations were issued. Through 2021, 20 citations were issues and more in 2022. The practice of nudity remains as it always was.
FEMALE TOPLESS LAWS
The Hawai'i Supreme Court in the case of State v. Crenshaw (1979) determined that female breasts are not genitalia (aka private parts) and therefore the exposure of the female breast, under the circumstances of this case, cannot be said to be a lewd act within the proscription of HRS § 712-1217, Open Lewdness. The circumstances of the case were sunbathing at a public beach.
A related statute HRS §707-734 Indecent Exposure is limited to genitalia exposure and therefore cannot be applied to female breasts.
There are no Hawai'i laws that prohibit a woman from exposing her breasts, except for within the State Parks. Their No Nudity rule is defined in HAR §13-146-38 Swimming; nudity and HAR §13-146-2 Definitions. It is potentially unconstitutional but a grey area since the US Supreme court has never ruled on the subject.
The State Park No Nudity rule prohibits female breast exposure but permits male breast exposure, which is not equal protection of the law. The US Constitution, 14th Amendment, Section 1 applies to sex discrimination. The key phrase is: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
NUDITY LAWS EXCEPT STATE PARKS
HRS § 712-1217, Open Lewdness
HRS §712-1217 Open Lewdness has no relevance to nude bathing and sunbathing unless accompanied by a lewd act.
HRS §707-734 Indecent Exposure
The only nudity law that has some relevance is HRS §707-734 Indecent Exposure which states: “A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person (to whom the person is not married) under circumstances in which the actor's conduct is likely to cause affront” [parenthesis added].
the case of Hawai'i vs Kalama (2000)
The Hawaii Supreme Court in the case of Hawaii vs Kalama (2000) clearly defined the interpretation of HRS §707-734 Indecent Exposure. As a result, the law can only apply to nude bathing and sunbathing under very specific circumstances:
- The word "intentionally" applies to all elements of the statute, and if all elements cannot be proven intentional, there is no offense.
- Since the "intention" is to "expose" to "a person," the "affront" must be experienced by that same person. The law provides no protection for a person that could "happen on" such conduct because the person was not the subject of "intention." [This also applies to police officers.]
- The state of mind of "knowing" that a person could happen on such conduct, by definition is not "intention" and fails to meet the standard of the statute. The 4 legal states of mind are defined in HRS §702-206.
- Other persons who are present and naked do not qualify because they are not “likely to be affronted,” and therefore there can be no intention to affront.
- The court makes reference to the relevance of "observable vicinity" without further definition. The state of being "present" means in the "observable vicinity" which means that the person exposing genitals must be aware of the other person and have sufficient visual clarity in order for the act to be "likely to cause affront."
How does this work out in practice?
- Exposure of genitals on a beach where nude bathing and sunbathing is common practice is legal. However, if at the time, no one is nude and a Textile is present and complains (which is unlikely), it is a grey area.
- Exposure of genitals on any beach where there are no other persons is legal and continues to be legal when Textiles arrive and complain. However, that does not prevent a police officer (untrained in the intricacies of the law) issuing a citation that has to be defended in court.
- Exposure of genitals on any beach occupied by Textiles is illegal but if no one complains, no offense can be proven.
- Exposure of genitals on any beach occupied by Textiles who are some distance away is a grey area. The distance that qualifies as “present” or “likely to cause affront” has not been defined by statute or case history. It may be relevant that scientific studies, that have been accepted as evidence in criminal trials, have shown that facial recognition is impaired beyond 25 feet and is zero at 150 feet. It can be argued that clarity of vision is essential to be likely to cause affront.
- A complainant may be affronted by nudity, which is discernible over a longer distance than genitals, however there is no law prohibiting nudity.
NUDITY RULES IN STATE PARKS
Nudity Rules in State Parks
State laws described above and State Park rules are applicable in State Parks and are treated equally by the courts.
The State Park No Nudity rule is defined in HAR §13-146-38 Swimming; nudity and HAR §13-146-2 Definitions. The key phrases are: “No person shall bathe, swim, walk, sunbathe, or remain on the premises in the nude, or take outdoor showers in the nude, except for bathing or changing clothes within enclosed facilities provided for those purposes or for the exposed breast of a nursing mother in the act of breastfeeding an infant.” Nude is defined as: “uncovered post-pubertal human genitals, pubic areas, or the nipple or areola of post-pubertal human female breast.”
Nudity is illegal. After 33 years of non-enforcement at Little Beach and the issuing of recent citations, the validity of the law continues to be tested in the courts. Several motions to dismiss have been granted while others have pleaded no-contest. Meanwhile nudity is practiced at Little Beach.