Open and Gross Lewdness and Indecent Exposure Charges in Massachusetts (G.L. c. 272, §§ 16 and 53)

A college student urinates against a wall outside a bar at 1 a.m. A woman walking past calls the police. A man changes his clothes in a parked car at a beach lot. A family in the next car sees him. A homeowner walks past an uncovered window after a shower. A neighbor files a complaint at the courthouse. Each of these people can be charged in Massachusetts with open and gross lewdness and lascivious behavior under G.L. c. 272, § 16, or with indecent exposure under G.L. c. 272, § 53.

Open and gross lewdness is a felony. A person convicted of open and gross lewdness can be sentenced to up to three years in state prison, up to two years in jail, or a fine of up to $300. Indecent exposure is a misdemeanor. A person convicted of indecent exposure can be sentenced to up to six months in jail or the house of correction, a fine of up to $200, or both. Whether the Commonwealth can prove the felony or only the misdemeanor usually depends on one element, shock or alarm.

This page explains what the Commonwealth must prove for each charge, the difference between the two charges, how the law treats nudity at home and in public places, the clerk-magistrate hearing that often comes before any complaint issues, and what a conviction means for sex offender registration, a criminal record, a college, a professional license, and immigration status. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He defends these charges in the district courts and the Boston Municipal Court across Greater Boston, and he represents students and licensed professionals in the school and licensing proceedings that run alongside the criminal case.

What the Commonwealth Must Prove for Open and Gross Lewdness

To convict a person of open and gross lewdness and lascivious behavior under G.L. c. 272, § 16, the Commonwealth must prove five elements beyond a reasonable doubt. The Supreme Judicial Court listed the elements in Commonwealth v. Quinn, 439 Mass. 492, 501 (2003), and restated them in Commonwealth v. Maguire, 476 Mass. 156, 158 (2017).

• The defendant exposed his or her genitals, buttocks, or female breasts to one or more people.
• The defendant exposed that part of the body intentionally, not by accident or carelessness.
• The defendant did so openly. The defendant either intended other people to see the exposure or recklessly disregarded a substantial risk that other people who might be offended would see it.
• The defendant exposed that part of the body in a way that would alarm or shock a reasonable person.
• At least one person was in fact alarmed or shocked.

The statute does not require a public place. In Commonwealth v. Wardell, 128 Mass. 52 (1880), the Supreme Judicial Court held that an exposure inside a private home was open where the defendant intended the people in the room to see it and at least one of them did. The exposure does not have to be of the genitals. In Quinn, the Supreme Judicial Court held that an intentional exposure of the buttocks can be open and gross lewdness. The court also held, however, that the defendant in that case, who pulled down his pants to show his thong underwear to four schoolgirls, had no fair notice that exposing thong-covered buttocks was a crime, so the charge could not stand against him.

Masturbation without an exposure is not open and gross lewdness. In Commonwealth v. Blackmer, 77 Mass. App. Ct. 474 (2010), a student at Smith College saw a man in a parked van moving his hand against his groin. She did not see his genitals or buttocks. The Appeals Court set aside the § 16 conviction because the Commonwealth did not prove an exposure. The Appeals Court upheld the defendant’s separate conviction under § 53 for being a lewd, wanton, and lascivious person in behavior, which is explained below.

What the Commonwealth Must Prove for Indecent Exposure

To convict a person of indecent exposure under G.L. c. 272, § 53, the Commonwealth must prove three elements beyond a reasonable doubt. The defendant exposed his or her genitals to one or more people. The defendant did so intentionally. One or more people were offended by the exposure. Criminal Model Jury Instructions for Use in the District Court, Instruction 7.340.

Indecent exposure is limited to the genitals. In Commonwealth v. Arthur, 420 Mass. 535 (1995), a man at a beach pulled his bathing suit down far enough that a mother and daughter saw his pubic hair and the area around his genitals, but not his genitals. The Supreme Judicial Court set aside the conviction. Exposure of the pubic hair, the genital area, the buttocks, or a female breast is not indecent exposure under § 53.

The Commonwealth does not have to prove that anyone was alarmed or shocked. The Commonwealth must prove only that someone was offended. Commonwealth v. Fitta, 391 Mass. 394, 396 (1984). An offensive act is one that is repugnant to the prevailing sense of what is decent or moral. Commonwealth v. Cahill, 446 Mass. 778, 781 (2006). Indecent exposure does not have to occur in a public place, and the person offended can be the only witness. Commonwealth v. Bishop, 296 Mass. 459, 460 (1937).

Shock or Alarm: The Difference Between the Felony and the Misdemeanor

The difference between the felony and the misdemeanor is shock or alarm. The Supreme Judicial Court has held that the two elements of § 16 that require shock or alarm are what distinguish the felony from the closely similar misdemeanor of indecent exposure. Maguire, 476 Mass. at 158. A person who was offended, nervous, or disgusted was not shocked or alarmed. The Commonwealth must prove that at least one person had a serious negative emotional experience, such as fright or intimidation. Commonwealth v. Ora, 451 Mass. 125, 127 (2008). Commonwealth v. Kessler, 442 Mass. 770, 774-775 (2004).

In Maguire, an MBTA transit detective followed a man through the Park Street and Hynes Convention Center stations and saw the man’s exposed penis for one or two seconds while the man faced women seated on a bench. The detective testified that he was disgusted and concerned for the women. The women never noticed. The Supreme Judicial Court held that the detective’s disgust and his concern for other people did not prove shock or alarm, set aside the felony conviction, and ordered a conviction for the misdemeanor of indecent exposure instead.

In Kessler, two boys aged ten and thirteen saw a man masturbating in the window of his mother’s house after he knocked on the glass and waved them over. The boys giggled from nervousness and told their grandmother, who called the police. The Supreme Judicial Court held that nervousness, excitement, and offense are not shock or alarm, and ordered a judgment of acquittal on the felony charge. By contrast, in Commonwealth v. Swan, 73 Mass. App. Ct. 258, 261 (2008), the Appeals Court upheld a conviction where a young student was grossed out, became nervous, and rushed out of the room.

Since Maguire, the Commonwealth must prove both that a witness was in fact shocked or alarmed and that the witness’s reaction was reasonable in the circumstances. 476 Mass. at 159. The judge or jury considers the time, the place, the extent of the exposure, and how long it lasted. Instruction 7.400. Defense counsel reads the police report and the witness statements for the words the witness used and for what the witness did next. A witness who kept walking, kept talking, or kept watching ordinarily did not experience shock or alarm.

Nudity at Home and Uncovered Windows

Nudity inside a person’s own home is not a crime. A person who walks past an uncovered window after a shower, or who sleeps without clothes with the shades up, has not intentionally exposed himself or herself to anyone. The Commonwealth must prove that the person exposed the genitals or buttocks intentionally and openly. For open and gross lewdness, the Commonwealth must also prove that the person intended others to see the exposure or recklessly disregarded a substantial risk that others would see it. Recklessness requires more than carelessness. Instruction 7.400.

The police and the courts treat a window very differently when the person uses the window to display himself or herself. In Commonwealth v. Montez, 45 Mass. App. Ct. 802 (1998), a man stood naked in his apartment window masturbating while he watched two women across the street through binoculars. He continued after one woman’s boyfriend asked him to stop. The Appeals Court upheld his open and gross lewdness conviction. In Kessler, the man knocked on the window and waved the boys over before he masturbated, and the Supreme Judicial Court set aside the conviction only because the boys were not shocked or alarmed. In Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 41 (1985), the Appeals Court held that the police had probable cause to arrest a man who stood at an uncurtained rear apartment window at an early morning hour with his trousers open, wearing no underwear, with his hands at his groin.

A neighbor’s complaint about nudity in a window usually arrives as a police visit or as a notice of a clerk-magistrate hearing. The clerk-magistrate, the judge, or the jury decides the case on whether the person knew that people outside could see in, whether the person stayed at the window or did anything to draw attention, how long the exposure lasted, and what the neighbor did and felt. Defense counsel photographs the window from the neighbor’s vantage point, measures the distance, and establishes the lighting at the time. A person who closes the blinds, moves away, or did not know the window was visible from the street has a defense to both charges.

Cars, Trains, Beaches, Parks, Bars, and College Campuses

Many open and gross lewdness and indecent exposure charges arise in public places. The reported cases involve a man in a parked car who exposed himself to two boys, Fitta, 391 Mass. at 395, a man driving on a public road while masturbating with his penis exposed, Commonwealth v. Adams, 389 Mass. 265, 271 (1983), a man on an MBTA platform, Maguire, a man outside a parochial school, Quinn, a man in a van on a college campus, Blackmer, and a man at a beach, Arthur.

A public place does not by itself prove the open element or the shock element. A person who changes clothes in a car at a beach, who urinates behind a building late at night, or who is nude on a beach where others are nude has a defense to both charges when the Commonwealth cannot prove intent that others see the genitals, or cannot prove that anyone was offended or alarmed. The Supreme Judicial Court has stated that § 16 cannot constitutionally apply where the defendant did not impose lewdness or nudity on an unsuspecting or unwilling person. Revere v. Aucella, 369 Mass. 138, 142-143 (1975).

Public urination is often the reason for an indecent exposure charge against a student. The police often write the charge as indecent exposure or as disorderly conduct under § 53. The Commonwealth must still prove that the student intentionally exposed his or her genitals to another person and that the person was offended. A student who turned toward a wall, in the dark, and did not know anyone was there has a defense. The firm’s page on disorderly conduct and resisting arrest explains the disorderly conduct charge.

Mooning, streaking, and skinny dipping are charged under the same two statutes. Exposure of the buttocks can be open and gross lewdness after Quinn, but only when the Commonwealth proves that the exposure was intended to be seen and that someone was in fact shocked or alarmed. Exposure of the buttocks is never indecent exposure under § 53 after Arthur. A streaker or a skinny dipper who exposes the genitals to people who are offended can be charged with indecent exposure.

Sex Acts in a Parked Car or Other Public Place

The Commonwealth charges a sex act in a public place, including masturbation, as being a lewd, wanton, and lascivious person in behavior under G.L. c. 272, § 53. The Commonwealth must prove that the defendant committed a sexual act involving the genitals, the buttocks, or a female breast, for sexual arousal or gratification or to offend other people, and that the defendant committed the act in a public place. Commonwealth v. Sefranka, 382 Mass. 108 (1980). The public place element is met when the defendant intended the act to be seen by another person or recklessly disregarded a substantial risk that one or more people would see it at that place and time. Instruction 7.380.

Two adults who have sex in a parked car at night in an empty lot have a defense when they wanted privacy and took reasonable steps to get it. The judge instructs the jury that a defendant who wanted privacy for a sexual act and took reasonable steps to secure it cannot be convicted unless the Commonwealth proves that the defendant intended public exposure or recklessly disregarded a substantial risk of exposure at that place and time. Instruction 7.380. A person convicted under this part of § 53 faces the same penalty as a person convicted of indecent exposure, up to six months in jail or the house of correction, a fine of up to $200, or both.

Recordings, Cameras, and the Presence Requirement

Open and gross lewdness requires the presence of a person who can be alarmed or shocked. Quinn, 439 Mass. at 496 n.9. In Commonwealth v. Snow, 104 Mass. App. Ct. 403 (2024), a painter masturbated inside a customer’s house while the customer was away. The customer watched the recording from her home security cameras later and reported him. The Appeals Court held that the complaint application did not establish probable cause for open and gross lewdness, because the customer was not present when the conduct occurred and watched it only on a recording. The Appeals Court did not decide whether a person watching a live camera feed could be present.

A person who secretly records another person who is nude is charged under the hidden camera statute, which the firm explains on its page on hidden camera and secret recording charges.

College Students Charged With Indecent Exposure or Open and Gross Lewdness

Campus police officers at many Massachusetts colleges are sworn police officers who can arrest a student and apply for a criminal complaint. A student charged after a party, a dare, a streaking tradition, or public urination near a dormitory faces a criminal case and a student conduct case at the same time. The college applies its own code of conduct and its own standard of proof. A college can suspend or expel a student whom a court later finds not guilty. The Commonwealth can also use a statement the student gives to a dean or a conduct board in the criminal case.

A student should not answer questions from campus police, residence life staff, or a conduct investigator before speaking with a lawyer. A student should also save every message and photograph from the night in question, and should not contact the person who complained. The firm’s page on college and university student criminal defense explains the campus proceeding, and the student criminal defense FAQs answer common questions. An international student should have an immigration lawyer review the charge before any plea, because a conviction or a continuance without a finding can affect a visa.

Nurses, Teachers, and Other Licensed Professionals

A nurse, a physician, a teacher, a lawyer, a real estate broker, or another licensed professional charged with indecent exposure or open and gross lewdness must address the disclosure rules of the licensing board. Some boards require a licensee to report an arrest or a charge within days. Others require disclosure only of a conviction or at renewal. A continuance without a finding counts as a conviction under some boards’ rules. The board can discipline the license for conduct that discredits the profession even when the criminal case ends without a conviction.

A teacher or school employee must also report a conviction, including a continuance without a finding, to the Commissioner of Elementary and Secondary Education, who can discipline the teaching license. The firm’s page on teachers and school staff accused of misconduct explains those rules. The firm’s page on criminal charges and professional licenses sets out the disclosure and discipline rules by profession, and the page on criminal defense for licensed professionals explains how the firm coordinates the criminal case with the licensing board.

How the Case Begins: Arrest, Clerk-Magistrate Hearing, and Arraignment

The police may arrest a person at the scene, or the police may apply to the court for a criminal complaint later. A neighbor, a store manager, or any other person can also apply for a complaint directly. For indecent exposure, which is a misdemeanor, a person who was not arrested is entitled to notice and a clerk-magistrate hearing before any complaint issues. G.L. c. 218, § 35A. For open and gross lewdness, which is a felony, the clerk-magistrate holds a hearing on a police application only when the officer requests one, and decides whether to hold a hearing on an application filed by a private person.

The clerk-magistrate hearing is a private hearing before any arraignment. The clerk-magistrate decides whether there is probable cause and, even where there is, whether to issue the complaint. Counsel presents the photographs, the measurements, the lighting, the witness’s own words, and the person’s lack of any record. A denial means that no complaint issues, no arraignment occurs, and no entry appears on the person’s criminal record from that application.

When the clerk-magistrate issues the complaint, or when the police arrested the person, the case goes to arraignment. The District Court and the Boston Municipal Court have jurisdiction over both charges, because the maximum state prison sentence for open and gross lewdness is three years. At arraignment, the judge admits the defendant to bail under G.L. c. 276, § 58, releases the defendant on personal recognizance, or imposes conditions of release, such as a condition to stay away from the place or the person involved. The arraignment creates the entry on the person’s criminal record.

Penalties and Dispositions

A person convicted of open and gross lewdness under § 16 can be sentenced to up to three years in state prison, up to two years in jail, or a fine of up to $300. A person convicted of indecent exposure, or of being a lewd, wanton, and lascivious person in behavior, under § 53 can be sentenced to up to six months in jail or the house of correction, a fine of up to $200, or both. Neither statute requires a minimum sentence, and neither statute bars a judge from continuing the case without a finding or placing the defendant on probation.

For a person with no record, the dispositions that end these cases without a conviction are a denial at the clerk-magistrate hearing, a dismissal, pretrial probation with the Commonwealth’s agreement, and a continuance without a finding. A judge may dismiss the felony count for lack of probable cause and leave the misdemeanor, and a jury that finds no shock or alarm may convict of indecent exposure as a lesser included offense where the exposure was of the genitals. Maguire, 476 Mass. at 162. Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 654-657 (2020).

Sex Offender Registration, the Criminal Record, and Sealing

A first conviction of open and gross lewdness does not require sex offender registration. G.L. c. 6, § 178C defines a sex offense to include open and gross lewdness only for a second or subsequent conviction. A second conviction of open and gross lewdness requires the person to register with the Sex Offender Registry Board. Indecent exposure is not a sex offense under § 178C, and a conviction of indecent exposure never requires registration.

A conviction still appears on the person’s CORI. The words “open and gross lewdness and lascivious behavior” or “indecent exposure” on a record read as a sex crime to an employer, a landlord, or a licensing board. A person convicted of indecent exposure can ask the Commissioner of Probation to seal the record three years after the case ends, including any time in custody, if the person has no new conviction in those three years. A person with a first conviction of open and gross lewdness, which is a felony but not a sex offense under § 178C, can ask for sealing seven years after the case ends. G.L. c. 276, § 100A. A person whose case ended in a dismissal, a not guilty finding, or a denial at the clerk-magistrate hearing can ask a judge to seal the record at any time under G.L. c. 276, § 100C. The firm’s page on sealing and expunging a Massachusetts criminal record explains the procedure.

Immigration Consequences

Federal immigration law imposes its own consequences on a conviction or a continuance without a finding for open and gross lewdness or indecent exposure. An immigration officer can also ask about the arrest, or about the conduct described in the police report, at a visa interview or a green card interview, even after a dismissal. A noncitizen should have an immigration lawyer review the exact charge, the person’s immigration status, and the court record before the person admits to anything or attends an interview.

Defenses

The defense in these cases rests on the elements the Commonwealth most often cannot prove.

• No intentional exposure. A person who was changing clothes, urinating in the dark, adjusting a bathing suit, or walking past a window did not intend anyone to see anything. Intent is an element of both charges.
• No exposure of the genitals. Indecent exposure requires the genitals. Pubic hair, the genital area, the buttocks, and a female breast are not enough. Arthur, 420 Mass. 535. Masturbation over clothing is not open and gross lewdness. Blackmer, 77 Mass. App. Ct. 474.
• Not open. A person who took reasonable steps to be private, or who did not know and had no reason to know that anyone could see, did not act openly or recklessly.
• No shock or alarm. A witness who was offended, nervous, or disgusted was not shocked or alarmed, and a police officer’s concern for other people is not shock or alarm. Maguire, 476 Mass. 156. Kessler, 442 Mass. 770. When the Commonwealth cannot prove shock or alarm, the judge or jury can convict only of the misdemeanor, if of anything.
• No one offended or present. A person who watched a recording later was not present. Snow, 104 Mass. App. Ct. 403.
• Mistaken identity. Many of these cases rest on a brief view of a stranger in a car or a window. In Blackmer, neither witness identified the defendant at trial. Counsel examines the description, the lighting, the distance, and any photographic identification procedure.

Counsel also obtains the 911 recording, any surveillance or body camera video, and the complete text message history, and interviews the witnesses before the clerk-magistrate hearing. The firm’s page on digital evidence in Massachusetts criminal cases explains how the Commonwealth and the defense use recordings at trial.

Speaking With Attorney Serpa

A person who receives a visit from the police, a phone call from a detective, or a notice of a clerk-magistrate hearing about an exposure should speak with a lawyer before answering any question. The police record the interview. The Commonwealth may play the recording at the hearing or at trial. The firm’s page on what to do when under criminal investigation explains the first steps. For a free and confidential consultation, call 617.936.0201. The Boston office is at 20 Park Plaza, Suite 400A. The Quincy office is at 500 Victory Road, Suite 400A.

Frequently Asked Questions

Related Serpa Law Office Resources

• Charged With Indecent Assault and Battery in Massachusetts: Defenses, Penalties, and the Sex Offender Registry
• Hidden Camera and Secret Recording Charges in Massachusetts (M.G.L. c. 272, § 105)
• Disorderly Conduct and Resisting Arrest in Massachusetts
• Massachusetts Clerk-Magistrate Hearing Lawyer
• College and University Student Criminal Defense Lawyer: Boston and Cambridge
• Massachusetts Criminal Charges and Professional Licenses: Disclosure and Discipline Rules by Profession
• Eastern Massachusetts Criminal Defense for Licensed Professionals
• What to Do When Under Criminal Investigation in Massachusetts Before Charges Are Filed
• Sealing and Expunging a Massachusetts Criminal Record
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts Criminal Charges Defense