Commonwealth v. Maguire
(Crimes/open and gross lewdness and lascivious behavior)

When a defendant is charged with open and gross lewdness and lascivious behavior in violation of G.L. c. 272, §16, the “shock” or “alarm” requirement (4th and 5th elements) has both a subjective and an objective component.  The Commonwealth must prove that at least one person was “shocked” or “alarmed” (subjective) and that the “shock” or “alarm” was objectively reasonable (objective).   

 

When the defendant is charged with open and gross lewdness and lascivious behavior in violation of G.L. c. 272, §16, proof of five elements is required to support a conviction, that the defendant  (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons. 

The fifth element of proof is the subjective component of “shock” or “alarm.”  This requires the Commonwealth to demonstrate that at least one person was alarmed or shocked by the defendant’s exposure. To establish this element, there must be evidence that the person sustained strong negative emotions in response to the defendant’s conduct.  Mere nervousness or statements that someone might have experienced “shock” or “alarm” are insufficient to meet this element.  

The fourth element of proof is the objective component of “shock” or “alarm.”  This requires the Commonwealth to demonstrate that the person’s “shock” or “alarm” was objectively reasonable.  “A person’s particular reaction – or the particular words used to characterize his or her emotional response – to the misconduct will not suffice to support a conviction under §16 if the reaction is not one that a fact finder finds reasonable.”