With very few exceptions, it is always a crime to expose one’s genitals in public in the state of Massachusetts. In some instances this behavior is prosecuted under the Indecent Exposure statute. In others, the behavior is prosecuted under the Open and Gross Lewdness and Lascivious Behavior statute, which carries a harsher potential penalty than the crime of Indecent Exposure.
To convict and individual of Open and Gross Lewdness and Lascivious Behavior the Commonwealth must prove five elements beyond a reasonable doubt. First, the Commonwealth must demonstrate that the defendant exposed his or her genitals, buttocks, or her breasts. The prosecution must then show that this was done intentionally. Next, it must be shown that this exposure was done “openly”; that is to say that the defendant intended the public exposure, or in committing the act of exposure recklessly disregarded a substantial risk that such a public exposure would occur. Fourth, it is the prosecutor’s burden to prove that the defendant’s act was done in such a way as to produce alarm or shock. Finally, it must be shown beyond a reasonable doubt that one or more persons were alarmed or shocked by the defendant’s exposure.
The Open and Gross Lewdness statute certainly encompasses acts of public masturbation and consensual sex in a public place. However, seemingly private behavior may actually be observed by others, and in this was many individuals have found themselves faced with committing this criminal offense despite having neither the intent to commit it nor the knowledge that they had arguably committed it. For instance, an individual at a crowded concert or tailgating at a football game may find the line for the restroom to be unbearably long, and as a result may be forced to relieve himself in what he believes to be a secluded area. However, if the act of public urination is observed by or reported to a police officer, this individual could find himself arrested and charged with committing this offense. Similarly, a couple may engage in intercourse in their home in the mistaken belief that their shades are down, not knowing that they are on display to one or more passerby. They too may be subject to arrest for violation of the Open and Gross statute. This is because the standard to arrest and charge an individual, that of “probable cause”, is far below the Commonwealth’s burden of proof at trial. Police officers thus often err on the side of overcharging this type of behavior, as any criminal offense remotely sexual in nature is likely to be an unpopular one, and no police department wants a reputation as being soft on these types of crimes.
The crime of Open and Gross Lewdness and Lascivious Behavior is punishable by up to three years in state prison, or two years in the house of correction. Alternatively, those convicted of the offense who are fortunate enough to avoid a sentence of incarceration are often subject to a lengthy period of probation and onerous probationary conditions. Additionally, a subsequent conviction of this offense requires one to register with the Massachusetts Sex Offender Registry Board.
If you have been charged with Open and Gross Lewdness and Lascivious Behavior you should contact Attorney Daniel Cappetta at (508) 762-4540 for a free consultation. As a former prosecutor and current defense attorney, Attorney Cappetta has the experience and knowledge to defend you against this serious charge.