Massachusetts Supreme Judicial Court Reverses Sex Conviction Against Man Who Exposed Himself in Subway Station

The Massachusetts Supreme Judicial Court today reversed a terrible decision issued by the Appeals Court in 2015 and held that a defendant’s public exposure of his penis did not constitute open and gross lewdness and lascivious conduct.  The name of the case is Commonwealth v. Maguire

In October of 2010, a MBTA detective was riding the subway when he saw the defendant sit across from a woman who appeared to be college-aged.  The detective watched the defendant rub his penis over his pants for up to one minute.  The defendant exited the train at the Hynes Convention Center station and the detective followed him.  Once inside the station, the defendant approached a bench where two or three women were seated.  When the defendant was five or six feet away, he removed his penis from his pants and made motions with his head as if he was trying to attract the women’s attention.  The detective saw the defendant’s exposed penis and testified at trial that he was disgusted and concerned that the defendant was victimizing the women with his public exposure.  When the detective approached, the defendant attempted to zip up his pants and run away.  The detective pursued him and placed him under arrest.  The defendant was convicted of felony open and gross, lewd and lascivious behavior and he appealed.  A divided panel of the Appeals Court upheld his conviction and the Supreme Judicial Court agreed to review the case.

In order to have proven the defendant guilty of open and gross lewdness and lascivious conduct, the Commonwealth needed to establish he intentionally and openly (or with reckless disregard of public exposure) exposed his penis in a manner so as to produce shock or alarm and actually shocked or alarmed at least one person.  The elements of indecent exposure (which is a misdemeanor) are similar, but do not require the Commonwealth to prove the defendant’s actions were intended to shock or alarm (or that his actions actually did cause shock or alarm).  In this case, the Supreme Judicial Court ruled the prosecution had not proven the defendant had actually shocked or alarmed the detective who witnessed his exposure (the detective was the only witness to testify against the defendant at trial – it’s not clear why the women sitting on the bench did not testify).  The Court said in open and gross cases, the Commonwealth must prove a witness to the public exposure was subjectively shocked or alarmed, and it was objectively reasonable for the witness to have experienced shock or alarm.  The Court noted that a person’s feeling of shock or alarm is often accompanied by a physical reaction (such as the witness fleeing the scene).  The detective’s testimony that he was disgusted by the defendant’s conduct and concerned for the women seated on the bench was insufficient to satisfy the shock or alarm element of the statute.  Even if the detective had testified he was subjectively shocked or alarmed by the defendant’s behavior, the Commonwealth also would have had to prove it was objectively reasonable for a person in the detective’s position (as an experienced police officer) to have experienced such strong emotions from seeing an exposed penis.

The SJC correctly applied the elements of the statute to the facts of this case in reversing the Appeals Court’s erroneous decision.  The Court remanded the case to the trial court, where the defendant will instead be found guilty of the lesser-included offense of indecent exposure.