There are two types of indecent exposure charges in Massachusetts. One is a misdemeanor and the other is a felony.

The more minor offense (though still serious) is called indecent exposure and has to do with the actual conduct or behavior. One is charged with the more serious crime of open and gross lewdness and lascivious behavior when one, through that behavior, intentionally attempts to shock and alarm others.

Examples of the misdemeanor of indecent exposure might include urinating in public; more minor public sexual acts; masturbation in a public setting even if one is in their own home or car; having exposed genitalia; or wearing little or no clothing in a setting where the public can see even if it is on private property.

To be convicted beyond a reasonable doubt of this offense, there are three elements that have to be met:

  1. Exposure of genitals
  2. Being seen by at least one other person who consider it offensive
  3. Having it be an intentional act

It has been defined as “an intentional act of lewd exposure, offensive to one or more persons.”

The punishment under Massachusetts General Laws Chapter 272, Section 53 can be a period of incarceration up to 6 months; a $200 fine; probation; an a criminal record.

Although the crime of indecent exposure may be a misdemeanor and would not generally fall under the category of major crimes, it must be challenged aggressively. This is because there is such a serious stigma to being charged with any crime that is considered sexual that it can have severe consequences to one’s reputation and standing in the community. This is aside from the legal consequences. In many ways, a conviction for this misdemeanor can have a more negative impact than a number of more serious felonies because there is such a social taint to being deemed a sex offender.

There can be other repercussions to such a conviction such as the loss of employment, housing or educational opportunities.

If the crime is aggravated, the more serious offense of open and gross lewdness and lascivious behavior can be charged. Although the crime of indecent exposure applies to just the exposure of the genitals, the other crime of open and gross lewdness and lascivious behavior may include not only the genitals, but also the buttocks or female breasts. The key to an open and gross charge is that it must be proved beyond a reasonable doubt that the act was done with the intention to cause shock and alarm in the other person or persons.  A victim must testify that he or she experienced shock and alarm and that is not always the case.

A person did not have to set out with the intent to try to knowingly break any law, just that they intended to do the act to cause shock and alarm in another person.

The distinction between the charges of indecent exposure and open and gross lewdness and lascivious conduct is that an indecent exposure case is about the behavior one is committing. An open and gross lewdness and lascivious conduct case is additionally about the impact this behavior has on others.

The maximum penalty for the charge of open and gross lewdness and lascivious behavior is three years in state prison; a $300 fine; probation; and a criminal record.

Even though it is, in effect, a sex offense, someone who is convicted of indecent exposure is not required to sign up for the sex offender registry. Neither does one for a conviction on a first offense charge of open and gross lewdness and lascivious conduct. However, if there is ever a second conviction of open and gross lewdness and lascivious conduct, then registration on the sex offender registry is mandatory.

There are a variety of defenses such as whether the accused person was actually exposed; whether the person charged with the offense was actually in a place where they had an expectation of privacy; and whether the person reporting an incident that resulted in an open and gross charge was actually shocked and alarmed as required particularly if they made no such mention when they first told the police.

If it is eventually determined that the case cannot be dismissed nor is it likely that it can be won at trial, then your attorney can pursue another approach to avoid a more severe sentence or even incarceration. In lieu of such greater punishments, the alternative can be for the accused to be evaluated by experts in the field and then begin a course of treatment that will work on whatever problems or issues the accused might have that resulted in such an offense. Treatment rather than punishment makes a great deal of sense not only to help the accused person, but also to help to keep the public from being subjected to such behavior.

Again, even if one avoids incarceration on either one of these charges, the impact to one’s reputation and the damage to one’s social status within the community on these shunned charges in particular is so disproportionately outsized that it is imperative to leave no stone unturned in trying to avoid a conviction with the best assistance from a veteran attorney with exceptional experience in the defense of sex offense charges such as indecent exposure.

Have you been charged with indecent exposure or open and gross lewdness and lascivious conduct? If so, contact Peter Elikann today for a free legal consult.



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01/08/2023 by Mark R.

I’m writing to inquire about legality/chargeable offense risk in Massachusetts of wearing thong/G string swimwear in public, where buttocks would be exposed, as it applies to two scenarios. First, wearing such swimwear at Massachusetts public beaches and nearby concessions/facilities (eateries, bathhouse, restrooms, etc.), local ordinances notwithstanding. And second, on my own residential property, if I’m wearing such swimwear sunbathing/moving about & enjoying my yard, or, planning a beach party themed gathering where I or my guests might be wearing such swimwear, in either case potentially in view of neighbors and/or street passersby. If no frontal genitalia are exposed, there does not appear to be any risk under the Indecent Exposure statute. However, under GLC272, Section 16, Open & Gross Lewdness, which does encompass exposure of buttocks, there seems to be at least the potential for risk. In either scenario I referenced, can just any person (law enforcement or otherwise) allege grievous harm, thereby satisfying the parameters for Open & Gross Lewdness to be charged, subject to the interpretation of the authorities? Or, does the absence of any deliberate harmful intent by the wearer of such swimwear, or context of setting/location, negate such a premise and avoid risk of charges? Also, is there any distinction/mitigating factor with regards to percentage and/or specific area of buttocks exposure allowable? Thank you. Mark R.

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