Here We Go Again ...

Board eyes nudity rule
By BOB AUDETTE, Reformer StaffBrattleboro Reformer

Tuesday, October 23BRATTLEBORO -- A nudity ordinance that will be presented to the Selectboard tonight might be too vague to be enforced. In fact, said Bob Fisher, attorney for the town, it might even be unconstitutional.

"This ordinance is subject to challenge for vagueness," said Fisher, because it has no definition of nudity.

Fisher was asked at the board's last meeting to craft an ordinance based on language proposed by Sen. Patrick Leahy, D-Vt., in 1971. At the time, Leahy was the state's attorney for Chittenden County.

"A number of law-enforcement agencies have asked this office for advice in view of the revival of the time-honored practice of unclothed swimming known colloquially as 'skinny-dipping,'" wrote Leahy in 1971.

Even though Leahy was concerned that spending time crafting an anti-nudity ordinance might take away from the more important duties of his office, he said "I have been reminded that in the past the plethora of paper from this office has included such legal landmarks as my position on the use of sparklers on the Fourth of July (a position hedged with great patriotic fervor) and the validity of upside-down license plates (complete with instructions on how to determine the sobriety of the operator at the time he attached the plate)."

With tongue firmly in cheek, Leahy said he researched the nudity issue by viewing Normal Rockwell paintings and interviewing, "after grants of immunity, experiences of this nature enjoyed by some of Vermont's prosecutors, judges, law-enforcement officers and sailboat operators."

"It appears that most Vermonters I've talked to have engaged in such scandalous activity at some time in their life (with the exception of a couple I didn't believe who claimed to have done so in May in Vermont)," he wrote.

To guide any law enforcement officer "so lacking in other criminal matters to investigate," wrote Leahy, he proposed that nude bathing in public and semi-public areas should be prohibited.

"The officer receiving the complaint should order the person to dress. Failure to stay clothed should result in a summons to Court."

On private land or out of the view of the public, he wrote, "the State has no legitimate interest and swimmers should be left alone."

Even though the Leahy language was written with all this in mind, Fisher said it may not be clear enough to be enforced.

"Does the ordinance give enough direction so the average ordinary person knows what's legal or illegal?" asked Fisher.

According to the draft ordinance, "nudity is not acceptable."

That's definitely not enough for police, said Capt. Eugene Wrinn, the acting chief of the Brattleboro Police Department.

"We like definition," he said. "We need it in black and white."

According to the draft ordinance, those found wandering the streets of Brattleboro without clothing would first be told by police to don appropriate garb. If they don't don appropriate garb, they could be fined $100.

Nudity would not be prohibited in one's own backyard under the draft ordinance. It would also be permitted at local swimming holes "if no member of the public is offended (or) no disorderly conduct has taken place."

There are two versions of the draft ordinance, said Fisher. The first treats nudity as a civil offense. The second version treats nudity as a criminal offense, which would require police to issue a citation and the local district court to have a hearing.

This version could cross over into state statutes defining lewd and lascivious behavior or sexual misconduct and could cause those found guilty to be placed on a sexual offenders watch list.

An emergency ordinance prohibiting nudity in certain areas of Brattleboro was in effect during the summer. It expired in August after the Selectboard voted not to make it a permanent ordinance.

The Selectboard can't reimpose the emergency ordinance, said Fisher, because "there is no new emergency."

To reintroduce the document as a permanent ordinance would require the board to hold public hearings again.

If the Selectboard fails to act on an nudity ordinance, said Michael Gauthier at the board's Oct. 9 meeting, he will collect signatures on a petition to put the issue before voters in March.