The Massachusetts Sex Offense of Open & Gross Conduct/Lewd & Lascivious Behavior: Exactly What Is This? – Part One of Two

The other day, my wife and I were on Cape Cod. Suddenly, she directed my attention away from the water I was gazing at. “Look over there – Can you believe that?” she asked, incredulously. What I saw was a man, who appeared to be in his mid-to-late 50’s or perhaps early 60’s, “wearing” – and I use that term loosely – what I am sure he would have claimed was a “bathing suit.” What it actually consisted of, was two cords around either hip, leading to a small swatch of cloth that acted as a pouch, or pocket, for the man’s genitals.

To give you an idea of how much material this “pocket” consisted of, think of this comparison: If you made a fist, the material this man was wearing would not be enough to cover the top of an average person’s fist. In the rear (pardon the pun) there was no material whatsoever; his buttocks were completely exposed. I myself was quite offended (and I’m no prude.) Not just ‘somewhat’ offended, but very much. Other people in the area that we observed displaying uncomfortable facial expressions were also offended, and I know this for a fact because I quietly asked them if they were. Even children and teenagers were staring in stunned amazement. The man was not oblivious to the resulting attention, and he seemed to enjoy it, at one point even getting off his lounger to engaging in “stretching.”

OK, quick: Was this man’s appearance a crime in Massachusetts? Or just extremely poor taste? As a Boston sex offense lawyer, I can tell you that I’ve seen many of these types of cases. But first, exactly what Massachusetts sex crime could a person such as the above man, be charged with? The appropriate criminal charge for someone appearing in a state of ‘dress’ that violates state law is called “Open and Gross Lewdness,” which is a violation of M. G. L. c. 272, § 16. That statute makes it a crime to “intentional(ly) expose .. genitalia, buttocks, or female breasts to one or more persons.” This charge is also known as “Lewd and Lascivious Conduct.” Exposing one’s genitals, buttocks or breasts is not the only way that a person could be charged with this crime; it is just one. Public urination – sadly common at public gatherings such as sporting events – also triggers this crime.

Often, sex crimes like this can become very grey, as the person charged with the crime usually claims in his or her defense that they were “wearing a garment that did not expose the genitals, breasts or buttocks,” or if they were urinating in public, they did not “expose” the prohibited body areas. These cases are also often defended legally on the basis that the relevant statute is overly vague, and thus, legally speaking, is “void for vagueness.” This phrase refers to the constitutional requirement that any statute that criminalizes certain conduct, must do so with sufficient specificity and clarity that a person of reasonable intelligence could understand exactly what specific conduct is illegal.

Talk about odd timing that this incident should have occurred a few days ago: Just earlier that week, the Massachusetts Appeals Court issued a ruling on the very questions raised above. The case, Commonwealth vs. Coppinger, dealt with the arrest and conviction of a man who walked into a Target store wearing translucent (basically see-through) shorts. A number of customers and employees took notice and offense. At least one witness noted that she could see the “flesh color of his skin,” his buttocks, and his genitals. The local police were called, and the man was arrested and charged, among another crime, with “Open and Gross Lewdness and Lascivious Behavior,” violating M. G. L. c. 272, § 16.

In Part Two of this post, I’ll explain how the court ruled with this case, and what the ruling means for people like the individual that my wife and I witnessed a few days ago.