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Massachusetts Appeals Court Affirms Sex Crime Conviction for Defendant who Exposed Himself in MBTA Station

A divided panel of the Massachusetts Appeals Court today affirmed the conviction of a man who exposed himself to fellow subway passengers at the Hynes Convention Center T stop.  The name of the case is Commonwealth v. Maguire

The defendant was charged with open and gross, lewd and lascivious behavior following his arrest on October 14, 2010.  On that afternoon the defendant was riding the T between the Park Street and Hynes Convention Center stations.  There was an MBTA detective who was riding in the same subway car.  The detective saw the defendant sit down across from a young woman and begin to rub his penis over his pants for up to a minute.  Upon arrival at Hynes, the defendant exited the train and the detective followed.  The detective watched as the defendant leaned against a pillar approximately six feet away from a few women who were sitting on a bench.  The defendant faced the women, made a motion with his head in an apparent effort to get their attention, and exposed his penis.  The detective saw the defendant’s exposure for one to two seconds.  The detective then approached the defendant, who fled on foot.  The detective ultimately caught up with the defendant and placed him under arrest.

The open and gross, lewd and lascivious statute requires proof that a defendant intentionally and openly (or with reckless disregard of public exposure) exposed himself in such a way as to produce shock or alarm.  The Appeals Court ruled that the defendant had clearly satisfied these requirements of the statute.  However, the law also requires proof that the exposure actually shocked or alarmed one or more persons.

The two justices in the majority concluded that the detective had been sufficiently alarmed or shocked to allow the defendant’s conviction to stand.  The detective testified at trial that he was “disgusted” and “concerned” that the women on the bench were being victimized (the women did not testify at trial).  The defendant argued on appeal that the detective’s testimony had not been specific enough to support a conviction, and the dissenting justice agreed.  The dissent said that the Commonwealth needed to have proven that the defendant’s conduct created a “serious negative emotional experience” for the detective.  Mere nervousness or offense is insufficient.  The dissent pointed out that while the detective said he was disgusted, he went on to explain that his concern was with the women on the bench having to be exposed to the defendant’s penis.  Thus, the detective was not personally shocked or alarmed, but rather concerned that others would be affected by the defendant’s behavior.  The dissent argued that the defendant should have been convicted of indecent exposure, which is a less serious crime than lewd and lascivious behavior.

The dissent’s argument is persuasive.  At trial the detective conceded that it was common for him to see exposed penises in locker rooms and public bathrooms and their exposure did not disgust him.  Additionally, the detective purposely positioned himself in the station so he could see that the defendant was exposing himself.  It’s hard to image a police officer being so outraged and offended by an exposed penis to satisfy the elements of the lewd and lascivious statute.

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