The Element of Shock or Alarm For Open and Gross Lewdness Convictions


Open and Gross Lewdness

Open and gross lewdness and lascivious behavior in Massachusetts is a crime under G.L. c. 272 Section 16. To convict someone of this crime the prosecuting attorney must prove the element of shock or alarm. This requirement was recently clarified by the Supreme Judicial Court in the Commonwealth v. Maguire, SJC-12013.  The case held that there is both a subjective and objective component of this element that must be proved before a conviction can stand. This post examines that case and the Commonwealth’s burden in open and gross cases.

The Facts in Commonwealth v. Maguire

The Supreme Judicial Court found the following facts in Maguire. In October of 2010 and MBTA cop saw the defendant get on a train. He sat across from a young woman. The officer saw Maguire rub his penis, over his pants for at most one minute. The defendant exited that train and remained on a train track platform in another station. He attempted to get the attention of young women and in front of them manipulated his penis in a manner consistent with starting to urinate. Maguire then exposed his penis to the women. The detective was disgusted and concerned. He then arrested Maguire.

What Must Be Proved to Support Shock or Alarm

In its decision the Court went on to distinguish the difference between open and gross lewdness, a felony and indecent exposure, a misdemeanor. The former requires the prosecution to prove that at least one person was shocked or alarmed by the exposure. There is a subjective and objective component to this element. Subjectively, shock and alarm require “strong evidence of negative emotions…most commonly corroborated by an immediate physical response”. Here, in Maguire, that element was not met. There was no evidence that anyone experience that strong negative emotion. The objective component requires a person’s reaction to the actions of the accused to be reasonable. A reasonable person analysis will be applied when examining challenges to charges brought under this statute.

Our office has successfully defended these cases on countless occasions. We know police officers are taught to use legal terms in their reports to support their application for a criminal complaint. The actual words “shock” and “alarm” are used in their reports and attributed to the “victims”. Yet when we interview these people they often do not complain of being shocked or alarmed. They never admit to using those words and often confess that those sentiments do not reflect how they felt at the time of the incident. Getting them to admit this at trial or in a motion to dismiss has helped us secure acquittals and sometimes dismissals of these cases.

Hire an Experienced Massachusetts Criminal Defense Attorney

Our office has been defending the accused for nearly three decades. Our record is unmatched. If you have been charged with open and gross lewdness, indecent assault and battery or any crime in Massachusetts we encourage you to call us. We can be reached at 617-263-6800 or you can send us an email. We can help you.