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Open and Gross Lewdness and Lascivious Behavior
Open and gross lewdness and lascivious behavior is a felony sex crime under G.L. c. 272 §16, punishable by up to 3 years in state prison. The offense involves intentionally exposing your genitals, buttocks, or female breasts to another person in a manner that is meant to —and does—shock or alarm that person. A conviction cannot only result in a prison sentence, but it can also, in some cases, require sex offender registration.
To convict a defendant of this offense, the prosecutor must prove beyond a reasonable doubt that the defendant:
- Exposed her/his buttocks, genitals, or female breasts to one or more persons;
- Did so intentionally;
- Did so openly, meaning that he/she either intended exposure to the public or had a reckless disregard for a substantial risk of public exposure. “Openly” only refers to the intent that the act be witnessed by the unwilling. It does not necessarily mean and does not require that the behavior take place in a public locale;
- Did so in a way to produce shock or distress; and
- Actually caused one or more persons shock or distress because of the exposure.
Charges of open and gross lewd and lascivious behavior often involve public masturbation. The law is designed to punish those who impose lewdness on unwilling people, and it does not apply to constitutionally protected expressions. It also does not apply to sexual acts that take place in an area where one can reasonably expect privacy. For example, if another person accidentally sees you engaging in a sex act through the window of your home, this would likely not amount to open and gross lewd and lascivious behavior. Indecent exposure, which is a crime under Massachusetts General Laws Chapter 272 §53, is a lesser included offense of open and gross lewdness.
Punishment
If you are convicted of this offense, you face imprisonment in the state prison for up to three years, in jail for up to two years, or a fine of up to $300. As such, it is a felony that is significantly more serious than the misdemeanor of indecent exposure.
Open and Gross Lewdness FAQ
What are the defenses to open and gross lewdness charges?
– Mistaken identity. These allegations usually come from brief, unexpected encounters. The opportunity to look is often fleeting, not sustained. Identifying the perpetrator can be confusing and suggestive. Massachusetts laws are strict on making an in-court identification without having made a prior out-of-court identification of the perpetrator.
– No one was shocked or alarmed. This is an essential element of the crime. Not everyone who witnesses something charged as open and gross lewdness experiences shock or alarm.
– Lack of intent to shock or alarm
– Conduct was not open. This means that the defendant did not intend the act to be witnessed by others. The conduct occurred in a place where the defendant believed that his actions would not be seen. An unexpected viewing caused by unusual circumstances may not be sufficient to prove that the conduct was “open.”.
– Conduct was not gross. Mere nudity is not enough. The indecent conduct must be glaring or flagrant.
– Insufficient evidence
– Conduct occurring in a place where there is a reasonable expectation of privacy
– No exposure. The Commonwealth must prove that the defendant exposed his genitals, buttocks, or female breasts. Allegations based on assumptions, unclear observations, wardrobe issues, shadows, distance, or confusion may not satisfy this requirement.
Is open and gross lewdness a felony in Massachusetts?
Yes, open and gross lewdness is a felony in Massachusetts. It is punishable by up to 3 years in state prison, up to 2 years in the house of correction, and a fine of no more than $300. A felony in Massachusetts is a crime that is punishable by a state prison sentence.
Can I be charged if I was on my own property?
Yes, the word “open” does not mean that the act must occur in a public place. In certain circumstances, if you intended that your actions be seen or if you acted recklessly in such a way that created a substantial risk of being seen, you can be found guilty.
Will I have to register as a sex offender?
No, a first offense for open and gross lewdness in Massachusetts does not require sex offender registration. However, second and subsequent convictions for open and gross lewdness do require sex offender registration. If your first offense resulted in you being placed on pretrial probation under G.L. c. 276 §87 or if the first offense was continued without a finding, those cases will not count as a first offense for the purpose of sex offender registration.
What is the difference between open and gross lewdness and indecent exposure?
Open and gross lewdness is a felony. Indecent exposure is a misdemeanor under G.L. c. 272 §53. Open and gross lewdness requires the prosecutor to prove the additional element of shock or alarm beyond a reasonable doubt. Indecent exposure is known as a lesser included offense of open and gross. If the district attorney has overcharged the case, sometimes during plea bargaining, an agreement is made to reduce the charge from a felony to a misdemeanor indecent exposure. Indecent exposure does not require sex offender registration.
What should I do if I have been charged with open and gross lewdness?
Hire a Massachusetts attorney who defends sex crimes. Get an evaluation from a forensic psychologist. This can result in getting the charge reduced to a misdemeanor and, in some cases, convincing the district attorney to agree to a recommendation of pretrial probation.
“Protect Your Future. Speak With a Massachusetts Sex Crimes Defense Attorney Today.”
Massachusetts Criminal Defense Attorney
Massachusetts criminal defense lawyer Stephen Neyman has handled numerous cases involving open and gross lewdness over the course of more than 38 years. He knows exactly how to defend against these kinds of charges, and as a former prosecutor, he also has invaluable insight into how district attorneys will approach such cases. With Attorney Neyman on your side, you will have excellent representation.
Tough Criminal Defense Tempered by Reason
Attorney Neyman is a tough lawyer who fights aggressively in all cases. He uses every strategy and the full extent of his capabilities to attack the charges that threaten his clients’ futures. As an intuitive individual, he also knows how to approach people and situations in ways that will benefit his clients.
Excellence Reflected in Results
Attorney Neyman encourages prospective clients to browse his case results page, as he feels that his results mirror the superior work that he does.
Law Offices of Stephen Neyman, P.C. 617-263-6800
At the Law Offices of Stephen Neyman, P.C., Attorney Neyman and his staff of talented professionals are committed to safeguarding the rights of those accused of crimes in Massachusetts. Call Attorney Neyman’s office at 617-263-6800 (24 hours a day, 7 days a week) or contact him online.
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