Instruction 7.500, Criminal Model Jury Instructions for Use in the District Court

UNNATURAL AND LASCIVIOUS ACT

The defendant is accused of having committed an unnatural and

lascivious act. Section 35 of chapter 272 of our General Laws provides as

follows:

“Whoever commits any unnatural and lascivious act

with another person shall be punished. . . .”

The purpose of the statute is to prevent public sexual conduct that

might give offense to persons present in a place that is frequented by

members of the public.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant committed an unnatural and lascivious act

with another person. The term “unnatural and lascivious act” includes

(anal intercourse) (fellatio, or oral sex involving contact between the mouth

of one person and the penis of another person) (cunnilingus, or oral sex

involving contact between the mouth of one person and the female sex

organs — the vagina, vulva or labia — of another person) (masturbation of

another person) (or) (any other intrusion of a part of one person’s body or

some other object into the genital or anal opening of another person’s

body);

Second: That the defendant committed that act intentionally; and

Third: That the sexual act was done in a public place; that is, a place

where the defendant either intended public exposure, or recklessly

disregarded a substantial risk of public exposure at that time and under

those circumstances, to others who might be offended by such conduct.

The defendant cannot be found guilty of this charge if he (she)

desired privacy for a sexual act

with another consenting adult

If relevant:

and took reasonable measures in order to secure that privacy. Therefore

the Commonwealth must prove that in choosing that particular locale, the

defendant either intended public exposure or recklessly disregarded a

substantial risk of public exposure at that place and time.

See Instructions 3.120 (Intent) and 3.140 (Knowledge).

G.L. c. 277, § 45 (“allegation that the defendant committed an unnatural and lascivious act with the

person named or referred to in the indictment shall be sufficient”). Commonwealth v. Ferguson, 384

Mass. 13, 16, 422 N.E.2d 1365, 1367 (1981) (in circumstances, parking lot was not a public place)

(statutory objective is to prevent possibility of offense to persons present in a place frequented by the

public; theoretical right of public access is insufficient, since a “place may be public at some times and

under some circumstances and not public at others”; statute cannot be applied to the consensual acts

of “persons who desire privacy and who take reasonable measures to secure it,” but only to persons

who “intended. . . or recklessly disregarded a substantial risk of exposure. . . . The Commonwealth

must prove that the likelihood of being observed by casual passersby must have been reasonably

foreseeable to the defendant, or stated otherwise, that the defendant acted upon an unreasonable

expectation that his conduct would remain secret”); Commonwealth v. Scagliotti, 373 Mass. 626, 628,

371 N.E.2d 726, 727 (1977) (private cubicle in motion picture theatre) (statute cannot be applied to

private places removed from public view which eliminate the possibility of offending persons in place

frequented by the public); Commonwealth v. Balthazar, 366 Mass. 298, 302, 318 N.E.2d 478, 481

(1974), habeas corpus granted sub nom. Balthazar v. Superior Court, 428 F. Supp. 425 (D. Mass.

1977) (statute inapplicable to consensual conduct of adults unless committed in a public place);

Commonwealth v. Morrill, 68 Mass. App. Ct. 812, 814, 815-816, 864 N.E.2d 1235, 1238, 1239 (2007)

(second-floor holding cell adjacent to two courtrooms as well as courthouse basement accessible to

court personnel are public places); Commonwealth v. Bloom, 18 Mass. App. Ct. 951, 952, 468 N.E.2d

667, 667 (1984) (open area of public toilet, as distinguished from inside of stall, is a public place).

The definition of what constitutes “unnatural” sexual intercourse is drawn from Commonwealth v.

Gallant, 373 Mass. 577, 584, 369 N.E.2d 707, 712 (1977) (in rape prosecution, “unnatural sexual

intercourse” includes “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions

of a part of a person’s body or other object into the genital or anal opening of another person’s body”).

See also Commonwealth v. Sefranka, 382 Mass. 108, 116, 414 N.E.2d 602, 607 (1980) (statute

includes public fellatio and oral-anal contact); Commonwealth v. Delano, 197 Mass. 166, 166-167,

83 N.E. 406, 406 (1908) (statute is applicable to “any and all unnatural and lascivious acts with

another person,” but not copulation, i.e. “the natural act of coition”); Commonwealth v. Dill, 160 Mass.

536, 536-537, 36 N.E. 472, 473 (1894) (statute was enacted to apply to a broader range of sexual

acts than the common law definition of sodomy); Commonwealth v. Benoit, 26 Mass. App. Ct. 641,

646-648, 531 N.E.2d 262, 265-266 (1988) (cunnilingus is an “unnatural and lascivious act” and,

except in a rape prosecution, does not require proof of penetration of the genital opening);

Commonwealth v. Guy, 24 Mass. App. Ct. 783, 785-787, 513 N.E.2d 701, 702-704 (1987) (in rape

prosecution, “unnatural sexual intercourse” includes female-to-female cunnilingus); Commonwealth

v. Baldwin, 24 Mass. App. Ct. 200, 204-205, 509 N.E.2d 4, 7 (1987) (in rape prosecution, “unnatural

sexual intercourse” includes digital contact with vagina, vulva or labia). Jaquith v. Commonwealth,

331 Mass. 439, 442, 120 N.E.2d 189, 192 (1954) held that “unnatural and lascivious” are words of

common usage meaning “irregular indulgence in sexual behavior, illicit sexual relations, and infamous

conduct which is lustful, obscene and in deviation of accepted customs and manners,” but Benoit, 26

Mass. App. Ct. at 649, 531 N.E.2d at 267, has cautioned that “the broad language of Jaquith. . .

would be inappropriate standing alone in jury instructions today [without being] promptly pinned down

by specific instructions” (citation omitted).