Instruction 7.400, Criminal Model Jury Instructions for Use in the District Court

OPEN AND GROSS LEWDNESS AND LASCIVIOUS BEHAVIOR

G.L. c. 272, § 16

The defendant is charged with open and gross lewdness and

lascivious behavior.

To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant exposed their (genitals) (buttocks) (or)

(female breast) to one or more persons;

Second: That the defendant did so intentionally;

Third: That the defendant did so “openly,” that is, either the

defendant intended exposure to another person or recklessly

disregarded a substantial risk of exposure, to another person who

might be offended by such conduct;

Fourth: That the defendant’s act was done in such a way as

would alarm or shock a reasonable person; and

Fifth: That at least one person was alarmed or shocked.

Commonwealth v. Maguire, 476 Mass. 156, 158, 161 (2017);

Commonwealth v. Kessler, 442 Mass. 125, 127 (2008).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant exposed their

(genitals) (buttocks) (or) (female breast). To expose means to

uncover or display.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant exposed their

(genitals) (buttocks) (or) (female breast) intentionally. This means

that the exposure was not merely an accident or the result of

carelessness. Rather, the exposure must have been the result of a

conscious and deliberate act.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant exposed their

(genitals) (buttocks) (or) (breast) openly. This requires proof either

that the defendant intended to expose themselves to another person,

or that the defendant recklessly disregarded a substantial risk of

exposing themselves to another person who might be offended by

such conduct.

To prove the defendant recklessly disregarded a substantial risk

of exposing themselves to another person who might be offended by

such conduct, 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 result in exposure of their

(genitals) (buttocks) (or) (female breast) to another person who might

be offended, 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 result in exposure to another person who would be

offended.

See Commonwealth v. St. Martin, 105 Mass. App. Ct. 71, 73 (2024).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant’s act was done in such

a way as would alarm or shock a reasonable person. You may

consider evidence about the act such as the time, the place, the

extent and length of the exposure, and any other relevant evidence.

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that at least one person was alarmed or

shocked upon witnessing the exposed (genitals) (buttocks) (or)

(breast). Alarm or shock requires more than proof of mere

nervousness or offense. It means a serious negative emotional

reaction. Mere nervousness or excitement is not enough.

If the Commonwealth has proved all five 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 find the defendant not guilty.