In an entertaining opinion delivered last week, the Massachusetts Appeals Court considered whether a man had been fairly convicted of a crime for wearing see-through shorts to a local Target store. The Court concluded, in Commonwealth v. Coppinger, that the law was constitutional and that the prosecution had provided sufficient evidence to convict the defendant.
In April of 2011, the defendant entered a Target store in Kingston while wearing white, see-through compression shorts. He asked an employee whether it was “okay” to wear the shorts inside the store. Several witnesses testified it was clear the defendant was not wearing underwear, and they could see the defendant’s buttocks and the flesh color of his skin through the shorts. Another witnesses testified that she could see the defendant’s “semi-erect” penis and testicles through the shorts. The police were called and as an officer responded, the defendant was pulling on a pair of jeans over the shorts. At trial, various witnesses described their shock at seeing the defendant’s exposed body through the compression shorts.
The police arrested the defendant and charged him with open and gross lewdness. A superior court jury convicted the defendant and he appealed. His principal appellate argument was that the open and gross lewdness statute was unconstitutionally vague, because it was not clear whether his conduct (of wearing the see-through shorts) qualified as “exposure.” The Appeals Court needed to decide whether exposure requires a naked display or whether it is possible to expose a body part through a covering. The Court pointed out that a person who wore a pair of shorts made of cellophane would surely be exposing himself, as the person’s buttocks and genitals would be completely visible (although still covered). The Court then said, “[w]e see no meaningful difference between wearing cellophane shorts and the defendant’s choice to wear shorts that were sufficiently revealing to a degree that the public could see the ‘flesh color of his skin,’ his buttocks, and his genitals.” Because the defendant “exposed” his genitals and buttocks “to view” and made them “known,” he was properly convicted of open and gross lewdness.
The Appeals Court conceded that prior case law did not directly address whether exposure through a covering could be criminally penalized. However, the Court concluded that a person of “common intelligence” would have known that displaying one’s genitals and buttocks through sheer material violated the law.
While the facts of the case are amusing (as long as you didn’t happen to be in the store to witness it), the consequences of a conviction are very serious. The law carries a possible prison sentence and a second conviction requires a defendant to register as a sex offender. By being arrested and charged, the facts of this case were widely reported in local newspapers and the defendant’s name will forever be associated with the facts of this case. The nature of the allegations and the conviction of a sex offense will likely haunt the defendant as he seeks employment, housing, and other services in the future.