Open and Gross Lewd and Lascivious Behavior

A conviction for open and gross lewd and lascivious behavior carries serious consequences, including a possible state prison sentence. A second conviction requires the defendant to register as a sex offender.

Elements of Open and Gross Lewd and Lascivious Behavior

In order to convict a defendant of open and gross lewd and lascivious behavior, the Commonwealth must prove beyond a reasonable doubt that:

  1. The defendant exposed his or her genitals or buttocks intentionally, or a female exposed her breasts intentionally, to at least one person;
  2. The defendant exposed himself or herself in public intentionally, or the defendant recklessly disregarded a serious risk of public exposure to other people who might be offended by the exposure;
  3. The defendant acted in a way to produce shock or alarm; and
  4. At least one person was shocked or alarmed by the defendant’s exposure.
Common Defenses and Defense Strategies

Open and gross lewd and lascivious behavior cases can be defended in a variety of ways.

  • 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 the defendant’s exposure was meant to produce shock or alarm. A fraternity brother who moons his classmates at a party is likely not guilty of lewd and lascivious behavior, whereas a man who exposes himself to children at a bus stop will likely be guilty.

This is the type of crime where bad judgment can very quickly lead to a conviction for a sex crime. Oftentimes people are charged with this crime when they are engaging in sexual conduct in some sort of public place, from a beach to a car. While they believe they have taken measures to shield their activity from the public, any discovery of their behavior is likely to result in criminal charges under the reckless disregard theory of prosecution. The subsequent prosecution may result in more than embarrassment. A conviction carries up to three years in state prison and a subsequent conviction results in mandatory registration with the Massachusetts Sex Offender Registry Board.

Upskirting

While it is illegal for anyone to expose their private areas to others in public, 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.

All sex crimes carry severe criminal penalties and collateral consequences. 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.

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