OPEN AND GROSS LEWDNESS OR SIMPLY INDECENT EXPOSURE?
In an August, 2015 Massachusetts Appeals Court decision, the conviction of a defendant who exposed his penis at an MBTA station was upheld, even though the only person who actually saw the act was an MBTA policeman who merely testified at the jury trial that he was disgusted and concerned for the females sitting nearby.
At issue was whether the prosecution had proven all of the elements of the crime of open and gross lewdness, which includes all of the elements of indecent exposure, i.e., he exposed himself, openly and intentionally, in such a way as to be likely to cause alarm or shock, plus the additional element that at least one person was actually alarmed or shocked.
So, is the testimony of a police officer that he was “disgusted,” and that he was “concerned” for nearby passengers tantamount to testimony that he was shocked or alarmed? The Appeals Court thought so, relying on a similar case where an officer had testified that he was both “a little bit disgusted” and “angry.”
In a dissenting opinion, a justice reminded the majority that case law defining “shock or alarm” requires a finding that the witness experienced “a serious negative emotional experience” above and beyond “mere nervousness or offense.” The dissent also pointed out that the case relied upon by the majority involved active masturbation, rather than just exposure, and cautioned the majority that placing too much importance on any particular word or other that might be uttered by a witness in describing their reaction, such as “angry” or “disgusted” would allow anyone to be convicted of open and gross lewdness – even if only exposing themselves indecently – so long as a police officer witness was willing to testify that he or she was “disgusted” out of a concern for others.
So, there is a distinction between indecent exposure and open and gross lewdness, but based on this new case, it’s a pretty minor distinction. It’s hard to imagine any police officer witness not testifying that he or she was disgusted on behalf of the public. If I were a prosecutor, based on this new case, I most certainly would ask my police officer witness before trial, “you were probably disgusted on behalf of the others nearby, weren’t you?” After they inevitably answered, “yes, I was,” I’d then say, “good, testify to that at trial.” I wonder if the Supreme Judicial Court will take a look at this one?
Attorney Kevin D. Quinlan
Uxbridge, Worcester County, Massachusetts
Criminal Defense/Family Law