HE MASSACHUSETTS SEX OFFENSE OF OPEN & GROSS CONDUCT/LEWD & LASCIVIOUS BEHAVIOR: EXACTLY WHAT IS THIS? – PART TWO OF TWO

In my previous post on this subject, I wrote of how, recently, my wife and I, as well as several other people, were exposed (pardon the pun) to a man on Cape Cod who was wearing a “swim suit” that was, in the expressed opinion of several observers, extremely offensive and obscene. I mentioned how odd the timing of this incident was, because the Massachusetts Appeals Court had delivered a ruling earlier that very week, on the subject of what is and isn’t legal, when it comes to very revealing clothing.

The defendant in that case, Commonwealth vs. Coppinger, was charged with the Massachusetts sex offense of Open and Gross Lewdness. He was tried before a jury, and was found guilty of that charge. He appealed his conviction, his lawyer arguing that the judge who presided at his earlier trial erred in denying the defendant’s Motion to Dismiss. That Motion had claimed that the statute prohibiting open and gross lewdness is “unconstitutionally vague,” and thus unenforceable. In addition, the defendant also argued on appeal that the trial judge erred again when instructing the jury on an accepted definition of the word “exposure” – because he claimed he was not “exposing” himself. Why? Here’s where things get interesting: Because, the defendant claimed, the translucent (see-through) “compression shorts” he was wearing, constituted “clothing,” and thus he could not have been legally “exposing” himself.

Interesting argument, but the Appeals Court denied both claims. First, on the issue of whether the statute was vague, the court outlined what elements of this Massachusetts sex offense the Commonwealth must prove beyond a reasonable doubt, which are: (1) That the defendant “exposed his or her . . . genitals, buttocks, or female breasts to one or more persons”; (2) That the defendant did so “intentionally”; (3) That the defendant did so “openly,” that is, he or she intended public exposure, or recklessly disregarded a substantial risk of public exposure, to individuals who might be offended by such conduct; (4) That the defendant’s act was committed in such a manner as to produce alarm or shock in anyone witnessing it; and (5) That one or more persons were in fact alarmed or shocked by the defendant’s act of exposing himself or herself.”

The court found nothing “vague” about the statute’s prohibited activities. More interestingly, the court next turned to the defendant’s claim that, in wearing translucent “compression shorts,” he was not “exposing” himself. The focus of that specific question was whether the prohibited “exposure” requires a display of unclothed, naked skin, or whether it is possible to expose a body part through a some type of transparent clothing or covering. Analyzing, the court considered the hypothetical scenario of a person wearing shorts made from cellophane instead of the material that the defendant was wearing at the time of his arrest. The court concluded that such conduct would unquestionably fall within the common understanding of “exposure,” as the person’s genitals and buttocks would be completely visible, regardless of the covering. The court saw no meaningful difference between wearing cellophane shorts and the defendant’s translucent shorts that were revealing enough that at least one witness could see the “flesh color of his skin,” his buttocks, and his genitals.

So, could the man that I my wife and other individuals saw (described at the top of Part One of this post,) have been arrested for appearing in the manner he did? As a Dedham, Massachusetts sex offense lawyer, I can assure you the answer is: Absolutely yes. Would he be convicted if he were tried on the charge of Massachusetts Open & Gross Conduct/Lewd and Lascivious conduct? Almost certainly, as his buttocks were exposed to view.

In closing, a word to the wise: If you like to display your private parts, do it in front of mirror, not in front of the public.