The law should punish harm, and being unclothed in itself harms nobody

The argument

Proponents of this position begin from what the criminal law is for. Its proper business, they argue, is conduct that injures someone, takes something from them, endangers them or forces something upon them. Being unclothed does none of the first three, and proponents hold that it does not do the fourth either: a person walking down a street undressed has taken nothing from anyone and left everyone able to continue about their business. The usual objection is that others are offended, and proponents meet it directly. Offence is a real experience, but a poor foundation for prohibition. What offends varies sharply between eras and between neighbouring countries, and within any society it is distributed unevenly, so a rule that permits prohibition wherever enough people feel uncomfortable would license a great deal that is now accepted without question, and would have blocked much that is now thought obviously permissible. Proponents argue that a free society accepts a standing cost in encountering things one would rather not see, and that this cost is already paid in respect of speech, dress, religion and art. The position is usually narrower than its critics suppose. Few proponents argue that nakedness should be unrestricted everywhere, and most accept rules for hygiene on shared seating, for schools, and for conduct that is sexual or deliberately directed at a particular person, which they regard as a different matter altogether. The distinction they press is between being undressed and behaving indecently. What they ask is that the law be written around the second, because the first is a state of the body rather than something done to anyone.

Premises

Counter-arguments

Opponents reply that the harm principle is being read too narrowly. Shared space works on mutual expectations, and someone who disregards them imposes on everyone who did not consent to the encounter, children and the genuinely distressed included. They add that treating all objection as squeamishness dismisses the reasons behind it, and that a rule nobody can opt out of in the street is not comparable to one governing a beach or a club that people choose to enter.

Rejecting the premises

[Rejecting P1] The criminal law has always addressed public order and the conditions of shared space as well as injury, and treating injury as its only proper concern is a philosophical preference presented as a definition. [Rejecting P2] Does none of those things to anyone passes over the people obliged to be present. Distress is something done to someone, and the premise excludes it by stipulation rather than by argument. [Rejecting P3] That standards vary shows they are conventional, not that they are arbitrary. Rules about noise, queuing and dress all vary between places and are not therefore unenforceable. [Rejecting C] Reserving the law for conduct rather than the state of the body assumes the two can be separated, when being undressed in a shared space is itself something done in the presence of others.