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

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