Legal Question in Criminal Law in Massachusetts

Re: gross and lewd misconduct

It sounds like you are asking about the charge of

Open and Gross Lewdness and Lascivious Behavior

(G.L. 272 � 16).

In order to establish the charge of Open and Gross

Lewdness and Lascivious Behavior, the Commonwealth

must prove more than just indecent exposure, which

requires proof of "�an intentional act of lewd

exposure, offensive to one or more persons. '"

Commonwealth v. Fitta, 391 Mass. 394, 396 (1984)

Though closely similar, to prove Open and Gross

Lewdness and Lascivious Behavior the Commonwealth

must also prove that Defendant's act was "committed

�in such a way as to produce alarm' or shock." Ibid.

For example, it can involve the imposition of nudeness

on an unsuspecting or unwilling person.

A conviction of an offense under this section can result

in punishment with a sentence to state prison for

up to three years or by a sentence to jail for up to

two years.

Conviction of this offense may also result in an obligation

to register as a sex offender, with the defendant's

name, photograph, fingerprints being added to the

sex offender registry and with certain registration

and reporting requirements, subject to certain

constitutional limitations under the due process

clause of the U.S. Constitution.

Sex offender registration and community notification

can have severe long term adverse effects on a persons

employability and ability to get housing.

Frequently, cases of indecent exposure are

inappropriately over-charged as under the

"open and gross" lewdness statute. Under these

circumstances, the felony charge can often be reduced

the misdemeanor offense of indecent exposure by

filing a carefully crafted motion to dismiss.

Mere accidental exposure is insufficient to result

in conviction under either statute. In some instances,

a complaint can be dismissed even before trial due

to lack of evidence.

J. Whitfield Larrabee

617-566-3670