Two charges that are often linked together yet carry distinct legal implications are indecent exposure and open and gross lewdness and lascivious behavior. While both involve inappropriate public behavior, they differ in severity and specific elements required for prosecution. This blog aims to clarify the nuances between these two charges, outlining their definitions, legal criteria, and potential consequences.
Indecent Exposure Massachusetts
Massachusetts G.L. c. 272, § 53 criminalizes a range of actions, including indecent exposure. While the law does not offer a formal definition of this offense, a person can face these charges if they commit an intentional act of lewd exposure, that is, offense to one or more people.
Indecent exposure is a misdemeanor offense punishable by imprisonment in jail or a house of correction for up to six months, a fine of up to $200, or both. The prosecution must prove all of the following elements to obtain a conviction:
- The accused exposed their genitals to at least one person.
- The accused exposed themselves intentionally.
- The accused’s actions offended at least one person.
Examples of indecent exposure include:
- Intentionally exposing genitals in public
- Urinating in public view
- Flashing or exhibiting private parts to passersby
- Engaging in sexual acts in a visible public area
- Sunbathing nude in a non-designated area
- Changing clothes in a vehicle parked in a public space
- Streaking or running naked through public spaces
Open & Gross Lewdness: Meaning & Legal Definition
In Massachusetts, open and gross lewdness and lascivious behavior is a more serious offense than indecent exposure. This charge involves lewd or lascivious behavior that is more egregious and potentially harmful to the public.
Open and gross lewdness and lascivious behavior involves the following elements:
- The defendant exposed their genitals, buttocks, or female breasts to one or more persons and did so intentionally.
- The defendant's act was done in such a way as to produce alarm or shock.
- One or more persons were, in fact, alarmed or shocked by the defendant's actions.
- The defendant's act was committed in a public place or where they could reasonably expect to be observed by others.
Massachusetts G.L. c. 272, §16 classifies open and gross lewdness as a crime. This offense is a felony. Those charged with this offense can face imprisonment in state prison for up to three years or imprisonment in jail for two years and a fine of up to $300. Second and subsequent open and gross lewdness convictions also require the defendant to register as a sex offender.
Key Differences Between the Offenses
The primary distinctions between indecent exposure and open and gross lewdness and lascivious behavior in Massachusetts lie in:
- the severity of the offense,
- the body parts involved, and
- the impact on witnesses.
Indecent exposure is generally considered a misdemeanor and typically involves the intentional exposure of genitals in public. It's often seen as a less severe offense, focusing mainly on the act of exposure itself. Open and gross lewdness, on the other hand, is classified as a felony and encompasses a broader range of actions.
The key factor elevating an act from indecent exposure to open and gross lewdness is the degree of impact on observers. While indecent exposure may be offensive, open and gross lewdness must produce a higher level of alarm or shock in witnesses. Essentially, open and gross lewdness can be viewed as an escalated version of indecent exposure, with broader scope and more serious legal consequences.
Supreme Judicial Court in the Commonwealth v. Maguire
In the case of Commonwealth vs. Lawrence Maguire, the defendant was initially convicted of open and gross lewdness and lascivious behavior, as well as resisting arrest. The incident involved Maguire being observed by a detective on a train.
The detective testified that he was "disgusted" by Maguire's actions: He observed Maguire sit across from a college-aged woman on the train and, from a distance, saw him rubbing his penis over his pants for up to a minute. When he exited the train, the detective followed, and while on the platform with fifteen to twenty-five others, Maguire leaned against a pillar facing a bench where some women were sitting.
The detective then saw Maguire try to gain the women’s attention. After nodding to the women, he moved his hands in front of him, as if he was about to urinate. However, there was no urine found at the scene, but Maguire did expose his genitals for a few seconds.
Out of concern for the women, the detective pursued and arrested Maguire, who was charged and later convicted of open and gross lewdness and lascivious behavior. It is important to note that there was no evidence that any other individuals were aware of or affected by the behavior. The Supreme Judicial Court reviewed the case and found that there was insufficient evidence to support the conviction of open and gross lewdness and lascivious behavior.
Key points from the Maguire decision include:
- Intent to shock or alarm: The court emphasized that open and gross lewdness requires the specific intent to produce alarm or shock in one or more persons and reiterated all of the elements needed to establish this offense occurred.
- Severity of conduct: The court noted that open and gross lewdness typically involves more serious or egregious conduct than indecent exposure.
Charged with one of these offenses? You need qualified representation. Give Brad Bailey Law a call at (617) 500-0252 to discuss your defense options.