In the case of Commonweatlh v. Maguire, 476 Mass. 156 (2017), the Supreme Judicial Court addressed the elements of the felony crime of Open and Gross Lewdness and Lascivious Behavior under G.L. c. 272, §16. Based upon a failure to prove that the defendant’s conduct of exposing his penis to several females sitting on a bench at the Hynes Convention Center subway platform produced either “shock” or “alarm” for the females or the MBTA officer who made the arrest, the Court reversed the conviction. The officer testified that he was disgusted at the defendant’s actions and concerned that the women were being victimized by those actions, but the Court ruled that evidence was insufficient to meet the subjective shock or alarm requirement for conviction of the felony. It reversed the conviction and remanded for entry of conviction for the lesser included crime of Indecent Exposure.
The crime of Open and Gross Lewdness and Lascivious Behavior has five elements: 1) exposure of the genitals, breasts or buttocks; 2) intentionally; 3) openly or with reckless disregard of public exposure; 4) in manner so as to produce shock or alarm; and 5) which actually produces shock or alarm in one or more persons. The Court noted that the fourth element is objective in nature, which it did not need to address in this case, but it did caution that the Commonwealth, in the future, must prove that the victim’s shock or alarm caused by the defendant’s conduct must be objectively reasonable. This case turned, however, on the subjective nature of the fifth element: no one testified that he or she was actually shocked or alarmed by the defendant’s conduct on the subway platform or that anyone reacted to the defendant’s conduct in any way that evidenced their shock or alarm. The officer’s disgust at the activity and his concern for the women seated on the bench were not sufficient. Additionally, there was no indication that the women reacted to the defendant’s conduct negatively; they remained seated on the bench the entire time, according to the officer.
Remember to identify in your report and testimony those individuals that display shock or alarm to the suspect’s conduct as well as their specific reactions to that activity. If there is no shock or alarm, then the crime is a misdemeanor only (indecent exposure).