Indecent exposure is a criminal offense, and a conviction may result in a fine or a short jail sentence.Elements of Indecent Exposure
In order to convict a defendant of indecent exposure, the Commonwealth must prove beyond a reasonable doubt that:
- The defendant exposed his or her genitals intentionally to at least one person; and
- At least one person was offended by the exposure.
Unlike the elements of open and gross lewd and lascivious conduct, indecent exposure does not include exposing a female’s breast, or any person’s buttocks. It applies only to male and female genitalia. This offense also does not require public exposure and does not require that the exposure produce alarm or shock (although at least one witness has to be offended by the exposure). Indecent exposure is what’s known as a “lesser included offense” of open and gross lewd and lascivious conduct.Common Defenses
Indecent exposure cases are commonly defended in the following manners:
- Accident - The Commonwealth must prove beyond a reasonable doubt that the defendant intended to expose himself or herself. A “wardrobe malfunction” is not sufficient to expose a defendant to criminal liability. Therefore, if a customer is changing clothes in a department store dressing room and the door unexpectedly flies open, the customer is not guilty of this crime even if other shoppers see his or her private areas.
- Context of the Exposure - The Commonwealth must prove beyond a reasonable doubt that at least one person who witnessed the exposure was offended by it. Therefore, a fraternity member who exposes himself to his brothers as a joke is unlikely to be guilty of indecent exposure, as his brothers will likely not be offended by the exposure. This offense is often charged when intoxicated people are urinating in a public place (such as in an alley next to a bar). If they are surrounded by other drunk individuals, the question always becomes whether anyone was offended by the exposure.
While it is illegal for anyone to expose their private areas to others in a way that will cause offense on the part of the viewer, it is also illegal to secretly take photographs or video of another person’s private parts when that person reasonably believes that he or she has appropriately covered those areas. The “upskirting” statute was passed by the Massachusetts Legislature and signed into law by the Governor in March of 2014, and a violation of the law carries up to two and a half years in jail. Secretly photographing or videotaping a child in this manner is punishable by more than five years in prison. The quick passage of the law followed a decision by the Massachusetts Supreme Judicial Court ruling that older laws did not apply to the crime of upskirting.
All sex crimes carry severe criminal penalties and collateral consequences. While indecent exposure is the least serious of the sex crimes, it remains an offense that can lead to a jail sentence upon conviction. Attorney Spring prosecuted these types of cases when he served as an assistant district attorney and he has successfully defended these crimes since founding Spring & Spring.