The Wrentham District Court will hear the charges of Open and Gross Lewdness and Disturbing the Peace that the Walpole Police filed against a Norfolk County Agricultural School teacher last week.
According to Wicked Local Walpole, a woman called the Walpole Police at 8:00 a.m. on Martin Luther King Day after twice passing a man in his driveway. The first time, she saw him he was wearing a hat, goggles, and a towel. The second time, "[i]n her return trip," he had "lost the towel." When the police arrived at his house, the man was wearing the towel and he insisted that he had never taken it off.
At that point it appears that the police were either going to give him the benefit of a doubt, or were going to file charges to be addressed at a clerk's hearing in the Wrentham District Court. That is, until another call came in two hours later. This time a woman said that a man was "naked" in the driveway (no mention of hat or goggles). To make matters worse, the woman said that he "thrust his hips onto his mail box as she drove by." This visual is highlighted with the allegedly accurate description of the man as having a "paunch" with "dark body hair."
With this information, the police obtained an arrest warrant for felony Open and Gross Lewdness and misdemeanor Disturbing the Peace. They executed the warrant at 3:00 p.m. on Wednesday. The article contains no information about his arraignment in the District Court.
Beyond the somewhat irregular allegations, this story brings to mind some issues with regard to Massachusetts Laws Chapter 272 entitled "Crimes Against Chastity, Morality, Decency, and Good Order." Both of the charges in this case are contained in this chapter.
While bodily exposure is an element of the crime of Open and Gross Lewdness, there needs to be more. Just being naked and being seen, is not enough. There must be proof beyond a reasonable doubt that the exposure was intentional. In other words, if the towel fell off, that would not be enough. Perhaps that is why the police apparently did not seek a warrant until the second woman said that the man was naked and thrusting "onto his mailbox." (I expect that "onto" was simply an unwise choice of words in the by the reporter).
In addition to exposure that is intentional, there must be even more. There must be proof that the intentional exposure was done to produce shock. And there must be proof that at least one person was actually shocked. Again, the prosecution will likely argue that the thrusting goes a long way toward satisfying this element. But, they will need to prove that the thrust was done specifically to shock the onlooker.
In sum, there must be proof that the teacher intended to expose certain parts of his body in a shocking way to other people who were in fact shocked. For the man to be convicted, the woman will have to come to court, testify, and thereby satisfy all of the elements, including shock.
If the prosecution is unable to prove the element of shock, they may fall back on a lesser offense of Indecent Exposure. Here there would have to be proof of intentional exposure along with someone being offended as opposed to shocked. That is an interesting distinction.
What is more interesting are the legal differences between the greater and lesser charges in this regard. Open and Gross Exposure is a felony, while Indecent Exposure is a misdemeanor. A more striking distinction is that the lesser charge actually requires exposure of genitals, while the more serious charge may be satisfied with non-genitalia such as buttocks or breasts. Apparently the drafters were concerned more with how one shows it, than what one shows. The case depends on the evidence, of course, but in my opinion the lesser charge may be more applicable. Even then, however, a conviction may not be easy in these circumstances.
It should be noted that a singe conviction of the felony Open and Gross Lewdness does not require one to register as a sex offender. A second conviction, however, does trigger that obligation an that obligation lasts for 20 years. I trust that the man has experienced criminal defense counsel to undertake the analyses and investigation necessary to bring an apparently imposing situation down to reality.
Even though it is probably the least of the teacher's concerns, let's look at the charge of Disturbing he Peace. Although this charge looks like a gift compared to the other, it could be even more difficult to prove when you look at the proof required. The elements of this crime are: 1) intentionally engaging in disruptive conduct such as making loud noises, threats, challenges, insults, etc. and 2) annoying/disturbing the tranquility of at least one person by doing such things.
So with Open and Gross one must be shocked, with Indecent Exposure one must be offended, and with Disturbing the peace one must be annoyed and/or disturbed.
In sum, what appears to be a relatively simple story actually has some provocative twists.