The Massachusetts statute outlawing “lewd” and “lascivious” behavior (M.G.L. c. 272, § 16) has been unchanged since its enactment in 1784.
In its entirety, the statute states,
A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.
Although the statute’s 240-year-old language remains the same, the Supreme Judicial Court has made several rulings hashing out exactly what type of behavior the law prohibits.
Under current case law,
The prosecution must show that (1) the defendant exposed his or her genitals, buttocks, or breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so “openly,” that is, either the defendant intended public exposure or recklessly disregarded a substantial risk of public exposure to others who might be offended by such conduct; (4) the defendant’s act was done in such a way as to produce alarm or shock; and (5) one or more persons were in fact alarmed or shocked by the defendant’s exposure.
See Commonwealth v. Ora, 451 Mass. 125 (2008).
The SJC has emphasized that behavior that simply “disgusts” or “offends” the average person isn’t enough to qualify as “lewd” or “lascivious.” Instead, the behavior must “alarm or shock” the victim.
Against, quoting the SJC:
We emphasized that the alarm and shock caused must be a “serious negative emotional experience,” stronger than mere “nervousness and offense.” Id. at 774-775. Open and gross lewdness is a felony punishable by up to three years in a State prison. Id. at 774. It is thus a much more serious offense than the misdemeanor of indecent exposure, G. L. c. 272, § 53, and consequently requires a substantially more serious and negative impact as a result of the behavior.
In a separate case, Commonwealth v. Maguire, 476 Mass. 156, the justices also noted that
Vicarious concern for other people or even disgust does not convert any ordinary indecent exposure case into one for open and gross lewdness
Nevertheless, the court has ruled that merely exposing your buttocks (i.e., mooning someone) could be enough to qualify as lewd or lascivious behavior if all the stated elements are met. See Commonwealth v. Quinn, 439 Mass. 492 (2003).
Two or more convictions under the statute require the offender to register as a sex offender.