Open and Gross Lewdness
In Massachusetts, the crime of Open and Gross Lewdness and Lascivious Behavior is considered a crime against “chastity, morality, decency and good order.” The purpose of the statute is to criminalize behavior that is “shocking or alarming” to society generally, compared to punishing the defendant for the effect of that conduct on particular victims.
The criminal offense of indecent exposure is very similar to the offense of open and gross lewdness, but they have different elements. Under the indecent exposure statute, which is a misdemeanor, any intentional exposure of genitalia can be prosecuted. Under the open lewdness statute, which is a felony, the prosecution must prove intention, manner and impact, and that the defendant acted in such a way as to alarm or shock.
In order to convict for open and gross lewdness, the prosecution must prove five elements, i.e., that the defendant: (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so as to produce alarm or shock; (5) thereby actually shocking or alarming one or more persons.
What do these elements mean?
- Exposed genitals, breasts or buttocks: this means that in order to be convicted for open and gross lewdness, the defendant must have exposed one of these three specific body parts.
- In a case where the defendant engaged in public, unexposed masturbation, he could not be convicted for open and gross lewdness and lascivious behavior, as the statute required exposure of the genitals or buttock
- Intentionally: The defendant exposed his “genitals, breasts or buttocks” intentionally.
- Openly or with reckless disregard of public exposure: The action of the defendant does not have to occur in a public place but must occur in the presence of another person who can be alarmed or shocked.
- In a case where the defendant was sitting in his vehicle and sought directions from another person, and the other person could not hear the defendant and approached the defendant’s car and found the defendant naked from the waist down, the defendant’s actions were considered “open”
- In a manner so as to produce alarm or shock: this element of the offense requires that the evidence demonstrate that a witness personally sustained the type of “serious negative emotional experience” that is stronger than “mere nervousness and offense” upon witnessing the defendant’s action. To determine that a victim was “shocked or alarmed, the fact finder looks not only to the statements of the victim, but also to the victim’s conduct, such as whether the victim immediately reported the incident to the police, etc.
*It is important to note that since 2017, courts require an additional element to the offense, that being that the ‘shock’ or ‘alarm’ experienced by the witness must have been objectively reasonable reaction in the circumstances of the conduct.
- “shock or alarm” was found in a case where the victim screamed upon seeing the defendant masturbating in the stairwell of the transit station, the victim testified that she was “disgusted” by the defendant's act, and victim immediately called the police and assisted the police to locate the defendant.
- “shock or alarm” was not found in a case where the defendant masturbated while visible through window of home, and the victims where boys who laughed because they were “nervous,” they left the window only after two calls from younger boy's grandmother, and the grandmother described the only as “excited,” and the older boy was merely “offended.
- If a witness is only vicariously concerned for other people, without more, this concern is not enough to demonstrate the witness’ shock or alarm to convict a defendant of open and gross lewdness.
- Thereby actually shocking or alarming one or more persons: In order to convict under the statute, someone must be personally and in fact shocked or alarmed by the defendant’s conduct; it is not enough that someone merely might be shocked or alarmed by the conduct.
Penalty: The penalty for a conviction of open and gross lewdness and lascivious behavior can include up to three years incarceration in state prison or a fine of three hundred dollars.
You need an experienced criminal defense lawyer on your side
Sex crimes are difficult cases but are highly defensible in court. DelSignore Law attorneys consistently handle these types of cases in court and, additionally, have attended sex crimes seminars in order to be able to craft the best possible defenses to our clients. You want to hire a lawyer who has experience and attends continuing education on these types of cases.
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