Unfortunately, in Massachusetts many defendants are often “overcharged” and face crimes, including felonies, when the complained of conduct simply does not meet the threshold legal requirements. We all know that being charged with a crime and dragged into court can interfere not only with someone’s liberty but with their job, family and lifestyle. This situation is particularly true if a defendant is charged with a crime that has sexual connotations, such as open and gross lewdness or indecent exposure. Massachusetts General Laws chapter 272, §16 does not define “open and gross lewdness and lascivious behavior,” but five elements have been generated by case law. These five elements are as follows: (1) that the defendant has exposed his or her genitals, buttocks or female breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so openly, either intending public exposure or recklessly disregarding a substantial risk of public exposure, to others who might be offended by such conduct; (4) that the defendant’s act has been done in such a way to produce alarm or shock ; and (5) that one or more persons have in fact been alarmed or shocked by the defendant’s thus exposing himself. Commonwealth v. Kessler, 442 Mass. 770, 773 (2004). In other words, the Commonwealth is required to prove “intention, manner, and impact.” Commonwealth v. Quinn, 439 Mass. 492, 496 (2003). This offense is a felony in Massachusetts and can have sex offender registry consequences.
Open and gross lewdness is similar to the offense of indecent exposure, which is proscribed by G.L.c. 272, §53, but the two have different elements reflecting, in part, their different origins. Commonwealth v. Quinn, 439 Mass. 492, 495 (2003). Indecent exposure, although seems to implicate some sort of sexual misconduct, this is a misdemeanor. While open and gross lewd and lascivious behavior requires that the defendant’s act be committed in such a way as to produce alarm or shock, indecent exposure requires only “an intentional act of lewd exposure, offensive to one or more persons.” Commonwealth v. Fitta, 391 Mass. 394, 396 (1984). Thus, the presence of “alarm or shock” is what distinguishes the open and gross offense from the indecent exposure offense, and being “offended” is not the equivalent of undergoing “alarm or shock.” Commonwealth v. Kessler, 442 Mass. 770, 774 (2004). Likewise, being “nervous” or “excited” does not “connote the serious negative emotional experience” required. Id.
While lewd and lascivious behavior is not confined to exposure of genitals, cases involving open and gross lewdness “invariably have involved exposure of the genitalia.” Commonwealth v. Arthur, 420 Mass. 535, 541 (1995). While sudden exposure of a buttocks by dropping one’s pants may alarm or shock, cases involving buttocks exposure in the context of open and gross lewdness have involved such exposure in front of children. See Quinn, 439 Mass. at 497-98. Indeed, the offense of open and gross lewdness has been applied primarily to indecent exposure in front of, and sexual conduct with, children. Commonwealth v. Sefranka, 382 Mass. 108, 116 (1980). Cases involving open and gross lewdness, as opposed to indecent exposure, tend to involve public masturbation or fellatio, Commonwealth v. Adams, 389 Mass. 265, 272 (1983), Commonwealth v. Dickinson, 348 Mass. 767, 767-68 (1964), Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901-02 (1996), exposure to young children, Commonwealth v. Fitta, 391 Mass. 394, 395-97 (1984), Commonwealth v. Wardell, 128 Mass. 52, 53-54 (1880), or sexual conduct with, and abuse of, young children. Commonwealth v. Lucas, 332 Mass. 594, 595-96 (1955).
Unfortunately, police officers are often not familiar with the different types of conduct required in order for them to charge an individual with either indecent exposure, lewd and lascivious conduct or no crime at all!