Open and Gross Lewdness

I know you are extremely concerned about being accused of an open and gross lewdness charge. But I can help you get through a criminal charge of open and gross lewdness or lewd & lascivious and work to make things right for you, and avoid a serious criminal conviction in most cases.

It is very typical for the police to overreact in these situations. In my experience, it is rare for people accused of such offenses to be an actual serious threat to public safety and order.

Most often, an open and gross charge is the result of one of the following situations:

• a misunderstanding
• a mistake
• a poor decision
• a temporary anxiety, depression or mental health issue.

I have successfully helped many people accused of these charges, and we were able to avoid serious criminal repercussions and sex offender registration.

Every case is different, and I can’t promise anything, other than I will work hard to protect your rights and your future.

Great Results for Open and Gross Lewdness Charges

What is a good outcome in court on an open and gross charge? It depends, but anytime we can avoid a criminal record, and any additional embarrassing details becoming public, that is generally a great result.

For example, I had a recent client who was seen publicly masturbating outside a restaurant.  In fact, he did not think anyone else was there or could see him, but a witness called the police on him. The client was absolutely mortified to be seen.

In the courtroom, I was able to make him feel more comfortable by getting the judge to agree to move the case to an empty courtroom. He did not want the charges read out, or case discussed in front of a public gallery of witnesses and onlookers who were there on other court business.

Because my client had no other record, I was able to convince the judge that this man was in no way dangerous or at risk of additional behavior.

We got the judge to agree to a great result of:

• Continuation without a finding –  the case would be dismissed in 6 months with no other issues
• No conviction on his record, or guilty plea
• No supervised probation
• No required sex offender treatment or registry

See my case wins page for details on some other of my successful cases.

What is Open & Gross Lewdness?

Open and Gross Lewdness is a crime that is considered slightly more serious than Indecent Exposure. It is charged in cases where a person intentionally exposes themselves in public in a manner where the public is “shocked”.

The most common example of Open and Gross Lewdness is public masturbation. The person may not deliberately want to be seen masturbating, but his conduct recklessly creates a substantial risk of being seen.

To be convicted of Open and Gross Lewdness and Lascivious Behavior, the Commonwealth must prove the following:

1. That the defendant exposed his genitals or buttocks, or that a female exposed her genitals, buttocks, or breasts;
2. That the exposure was intentional;
3. That the defendant did so “openly,” in that the defendant intended for people to see or recklessly disregarded a substantial risk of public exposure;
4. That the defendant’s act was done in such a way as to produce shock or alarm; and
5. That one or more persons were shocked or alarmed by the defendant’s exposure.

I have had cases of open & gross lewdness where the individual was (allegedly) drunk and urinating in public in full few of other people.

Often these cases can be dealt down to pretrial probation and a case dismissed after 3 months if there is no other bad behavior.

Is Open and Gross Lewdness a Sex Crime?

There is no formal definition of “sex crime” that has any specific meaning.

The important issue is that you are at risk of being required to register as a sex offender for a 2nd offense incident of open and gross. Even if your prior offense was continued without a finding, and not a conviction, another charge will be considered a second offense and subject to second offense penalties.

Massachusetts Penalties – Lewdness & Lascivious Behavior

A conviction for Open and Gross Lewdness carries penalties of:

• up 2 years in the house of correction and/or
• a fine of up to $300.

In addition, a person convicted for Open and Gross Lewdness more than once must register with the Massachusetts Sex Offender Registry Board (SORB).

Massachusetts Upskirt Law – Illegally Photographing Under a Person’s Clothing

“Upskirting” is the act of surreptitiously taking a picture or a person under their skirt, down their blouse, or otherwise under a person’s clothing.

The statute against this crime was quickly passed in 2014 after the Mass Supreme Judicial Court ruled in March 2014 that “upskirting”, the act was not illegal under the existing statutes, the Massachusetts legislature quickly passed a law that covers that action. The court determined in their ruling that the existing laws as written only applied to photographing someone who is “partially nude“, and probably didn’t anticipate the advent of small cameras everywhere that can shoot photos or videos from unusual angles.

“The legislation makes the secret photographing, videotaping, or electronically surveiling of another person’s sexual or other intimate parts, whether under or around a person’s clothing or when a reasonable person would believe that the person’s intimate parts would not be visible to the public, a crime.”

The legislature quickly added the statute to explicitly cover photos of clothed, yet private areas.

The penalty for illegally photographing or videotaping a person under their clothes (upskirting) is of up to 2½ in jail and up to a $5,000 fine. If the target is a child, the penalty goes up to 5 years in prison.

You can also be charged with sharing or distributing upskirt photos, with the same penalties.

Any type of video voyeurism could qualify as a crime under this law, via handheld video camera, hidden camera, or even via a flying drone, theoretically.

Ref MGL Chapter 272, Section 105

Any type of case like this is not something you want to mess around with. A conviction on your criminal record for such an offense can cause you a world of trouble down the road, so it makes sense to try to knock this charge down immediately whenever possible.

Call me to discuss how I can help you, and I’ll tell you about how I have successfully helped other people facing this exact charge.