Massachusetts G.L. c. 272, § 16: Open and Gross Lewdness and Lascivious Behavior

Massachusetts General Laws chapter 272, section 16 governs the crime of open and gross lewdness and lascivious behavior. It provides as follows:

“A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.”

The statute 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. In other words, the Commonwealth is required to prove “intention, manner, and impact.” The Commonwealth must prove each and every one of these five elements beyond a reasonable doubt in order to convict a defendant of open and gross lewd and lascivious behavior.

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.” 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.

The offense of open and gross lewdness has been applied primarily to indecent exposure in front of, and sexual conduct with, children. Cases involving open and gross lewdness, as opposed to indecent exposure, tend to involve public masturbation or fellatio, exposure to young children, or sexual conduct with, and abuse of, young children. In cases that do not involve such circumstances, defendants may have solid grounds for pre-trial motions to dismiss the open and gross lewdness charges for lack of probable cause.

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. 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.” Thus, the presence of “alarm or shock” is what distinguishes the offense of open and gross lewd and lascivious behavior from the indecent exposure offense, and being “offended” is not the equivalent of undergoing “alarm or shock. Likewise, being “nervous” or “excited” does not “connote the serious negative emotional experience” required. The open and gross lewdness offense may also be charged in connection with various other Massachusetts sex crimes.

One common defense to the charge of open and gross lewd and lascivious behavior is that the exposure was not done in such a way to produce alarm or shock or that noone was in fact alarmed or shocked. The idea is that the alleged exposure could not have been intended to produce the very serious emotional experience of alarm or shock and that, in the circumstances, the exposure would typically be intended to produce nothing more than offense, which does not rise to the level of alarm or shock. Often the exposure at issue is intended only as a joke or prank.

Open and gross lewd and lascivious behavior is punishable by imprisonment in the state prison for up to three years. Alternatively, it is punishable by imprisonment in a jail or house of correction for up to two years. The penalty could also involve a fine of up to three hundred dollars.

Open and gross lewd and lascivious behavior is a serious offense that can drastically impact one’s future. If you or someone you know has been charged with this crime, it is critical to speak with an experienced criminal defense lawyer as soon as possible. Stephen Neyman is a Boston, Massachusetts criminal attorney who has more than two decades of experience defending persons accused of open and gross lewd and lascivious behavior and all other Massachusetts criminal offenses. Attorney Neyman is an aggressive advocate for his clients and works tirelessly to protect their rights at every stage of criminal proceedings. He appears daily in courts all over Massachusetts on behalf of his clients, and he is well known as one of the best criminal lawyers this Commonwealth has to offer.

To speak with Attorney Neyman about open and gross lewd and lascivious behavior or any other criminal matter in Massachusetts, contact his office by calling 617 263 6800. He also encourages you to send him an email or message through his website. As soon as you reach out to Attorney Neyman, he will start working with you to build your winning defense. Attorney Neyman offers free and confidential initial consultations. For the best chances of success, contact him today.