Open and Gross Lewd and Lascivious Behavior

Massachusetts General Laws Chapter 272 Section 16 makes open and gross lewd and lascivious behavior a crime. Open and gross lewd and lascivious behavior involves the intentional and open exposure of the buttocks, genitals or female breasts to one or more persons in a way to produce shock or alarm and that did produce shock or alarm in one or more persons. “Open,” in the context of this law, means that the individual intended public exposure or recklessly disregarded a substantial risk of such exposure. Even if one unsuccessfully attempts to cover up, the act may still be considered “open” if it was committed in a location where no privacy was really possible. “Openness” does not require that the act be committed in a public place. It does, however, require that the defendant intended that the act be seen by one or more persons. If a sex act is committed in a place reasonably expected to be private, this statute does not apply, even if the act is somehow accidentally observed. That one or more persons become nervous or offended by an act is not enough to constitute “alarm” or “shock.” “Alarm” or “shock” requires that the emotional experience be serious.

This crime is often charged in connection with public sexual conduct, such as masturbation. The purpose of this statute is to prohibit individuals from forcing nudity and lewdness on the unwilling. As such, the statute is inapplicable to expressive conduct protected by the First Amendment that is presented to a willing audience.

Open and gross lewd and lascivious behavior is very similar to indecent exposure, which is prohibited by Massachusetts General Laws Chapter 272 §53. The difference is that this crime has the additional element requiring that the exposure be done in such a way as to produce shock or alarm. Indecent exposure is a lesser included offense of open and gross lewd and lascivious behavior.

Punishment

Open and gross lewd and lascivious behavior is a felony punishable by up to three years in state prison, up to 2 years in jail, or a fine of up to $300.

Defense Strategies

For a smart and experienced criminal defense attorney, there are several ways to defend against charges of open and gross lewd and lascivious behavior. Since the statute requires that the act be intentional, one such strategy might be to claim that any exposure was an accident. Given many modern fashion trends, it is not unusual for clothing-related accidents to occur. Additionally, there are many types of exposure that are not meant to cause shock or alarm. For example, mooning some friends would probably not amount to a violation of this statute, but masturbating on a park bench very likely would.

Experienced Massachusetts Criminal Defense Attorney

Kathleen M. McCarthy is a leading criminal defense lawyer in Massachusetts. With an office conveniently located in Boston, Attorney McCarthy offers outstanding legal services to persons all throughout the Commonwealth. Throughout her career, she has successfully handled many cases involving open and gross lewd and lascivious behavior. Attorney McCarthy is well-known for her consistent results and remarkable talent. Call her today if you have been charged with this or any other crime in the Boston area or in any surrounding Massachusetts county including:

  • Essex County

  • Middlesex County

  • Norfolk County

  • Plymouth County

  • Worcester County

You can reach the Law Offices of Kathleen M. McCarthy by calling 978-975-8060 or by contacting her online.

Case Results » Open and Gross Lewd And Lascivious Behavior
  • Judge Dismissed Case Charging Defendant With Lewd And Lascivious Behavior

    The police arrested the defendant after security personnel viewed footage and claimed that the defendant was openly "pleasuring himself" in a mall parking lot. The problem for the Commonwealth was that NO-ONE viewed his activities. The defendant was arrested and charged with Open and Gross Lewdness and Lascivious Behavior in violation of M.G.L. ch. 272, section 16.

    Attorney McCarthy argued that the conduct was not viewed directly be anybody – therefore it was not "open" and there was nobody that was alarmed or shocked by the defendant's behavior. For these reasons, the elements of the crime were not met. A judge eventually agreed and the case was dismissed.

    Read More in Sex Crimes

  • Case To Be Dismissed Against Client Charged With Sexual Offense Of Open And Gross Conduct/Lewd And Lascivious Conduct [M.G.L. ch. 272 section 16]

    According to the police report, a citizen reported to the police that a male was masturbating in a car in a residential neighborhood. After receiving the complaint the police canvassed the area and approached the defendant who was in a motor vehicle in the area. Despite the fact that the defendant denied the activity, he was arrested and charged with open and gross conduct based on the description given by the witness of the perpetrator and the car that he was in.

    It is important to have an experienced criminal attorney on your side if you or a family member faces this charge because a conviction can have collateral consequences including having to register as a sex offender. Lucky for this defendant, he contacted Attorney McCarthy immediately. Attorney McCarthy conducted extensive interviews and conferenced the case with the District Attorney's Office prior to trial. Attorney McCarthy stressed that the client had no other incident with the police and was a productive and law abiding individual. Based on McCarthy's persuasive arguments the District Attorney agreed to dismiss the case after the defendant performed a minimal number of community service hours. The client did NOT have to admit to any facts or plead guilty. Based on the agreement of the parties, the case will be dismissed in a few months.

    Read More in Sex Crimes

  • Clerk Magistrate Denies Request For Complaint Charging Lewd And Lascivious Conduct

    A neighbor made a report to the local police claiming that the defendant exposed himself in his apartment window when a group of neighborhood children were outside playing. Based on this complaint, a detective conducted interviews and a description of the alleged perpetrator was given. The complainant failed to identify the client/defendant in a photo array. During the hearing, Attorney McCarthy argued vehemently for her client's innocence and the clerk declined to issue the complaint against the defendant.