Instruction 7.380, Criminal Model Jury Instructions for Use in the District Court

LEWD, WANTON AND

LASCIVIOUS ACT

G.L. c. 272, § 53

The defendant is charged with having committed a lewd, wanton

and lascivious act. To prove the defendant guilty of this offense, the

Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant (committed) (publicly solicited

another person to commit) a sexual act;

Second: That the sexual act involved touching the genitals or

buttocks, or a female breast;

Third: That the defendant did this either for the purpose of

sexual arousal or gratification, or for the purpose of offending other

people; and

Fourth: That the sexual act (was) (was to be) committed in a

public place.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant (committed) (solicited)

the act in a public place. The Commonwealth must prove this in either

one of two ways: that the defendant either intended the act be seen by

another person, or that the defendant recklessly disregarded a

substantial risk of exposure to one or more persons at that particular

place and time.

A person acts intentionally when they commit a conscious and

deliberate act. It does not include an act that was merely an accident

or the result of carelessness.

To prove the defendant recklessly disregarded a substantial risk

of being seen by another, the Commonwealth must prove that that the

defendant’s actions went beyond mere negligence or carelessness.

The defendant acted recklessly if the defendant knew, or should have

known, that their actions were very likely to be seen by another

person, but they ran that risk and went ahead anyway. It is enough if

a reasonable person, under the circumstances as they were known to

the defendant, would have recognized that such actions were very

likely to be seen by one or more persons.

[If there is evidence Defendant took reasonable measures to secure

privacy]:

The defendant cannot be found guilty of this

offense if they desired privacy for a sexual act (if relevant to

the evidence: with another consenting adult) and took

reasonable measures in order to secure that privacy.

Therefore, the Commonwealth must prove that in

choosing that particular location, the defendant either

intended public exposure or recklessly disregarded a

substantial risk of public exposure at that place and

time.

If the Commonwealth has proved all four elements beyond a

reasonable doubt you should return a verdict of guilty. If the

Commonwealth has failed to prove any element beyond a reasonable

doubt you must return a verdict of not guilty.

Commonwealth v. Roy, 420 Mass. 1, 3-4 (1995) (statute cannot be applied to solicitation

for sexual conduct where unclear whether it was to occur in a public or private place);

Commonwealth v. Beauchemin, 410 Mass. 181, 183-184 (1991) (statute cannot be

applied to sexual conduct in location where little likelihood of being observed by casual

passersby); Commonwealth v. Sefranka, 382 Mass. 108, 117-118 (1980) (provision

“prohibits only the commission of conduct in a public place, or the public solicitation of

conduct to be performed in a public place. . . . involving the touching of the genitals,

buttocks, or female breasts, for purposes of sexual arousal, gratification, or offense, by

a person who knows or should know of the presence of a person or persons who may

be offended by the conduct,” and can be applied to speech only if it solicits particular

public sexual conduct which is itself criminal); Commonwealth v. Templeman, 376 Mass.

533, 537-538 (1978) (provision cannot be applied to protected speech or expressive

conduct); Commonwealth v. Kelley, 25 Mass. App. Ct. 180, 183 & n. 10 (1987)

(masturbation) (place need not be one “to which the public or a substantial group has

access,” but “judges, in the interest of caution, would be well advised to charge that the

offense requires either that the defendant ‘intended public exposure or recklessly

disregarded a substantial risk of exposure to one or more persons’”); Commonwealth v.

A Juvenile (No. 2), 6 Mass. App. Ct. 194, 197 n.1 (1978) (the terms “lewd, wanton and

lascivious” appear “to be redundant rather than disjunctive”).