CL Ch. 10- Sexual Exposure or Surveillance

Question 1

Lewd & Lascivious Conduct:

A sexual act which involves the touching of:

Answer 1

the genitals, buttocks, or female breasts.

Question 2

Lewd & Lascivious Conduct:

Elements: (Simplified) (4)

Answer 2

1. Committed OR Solicited
2. Sex Act (Genitals, buttocks, female breasts)
3. Arousal or Offense
4. Public.

Question 3

The suspect:

Committed or solicited another person to commit;

A sexual act which involved touching the genitals, buttocks, or female breasts;

For the purpose of:
-Sexually arousing or gratifying the suspect; or
-Offending other people; and

The sexual act was committed in, or was solicited for, a public place. This means the suspect:
-Intended public exposure; or
-Recklessly disregarded a substantial risk of public exposure to others who might be offended by the suspect’s conduct.

Answer 3

Lewd & Lascivious Conduct

ROA: Warrantless arrest in presence in public

Misdemeanor

Question 4

Audiobook:

Basically, Lewd & Lascivious is :

Answer 4

Consensual public sex that offends.

Misdemeanor

Question 5

Audiobook:

“Hey baby night boobs, I’d like to grab those!”

Proper charge:

Answer 5

Lewd & Lascivious Conduct:

SOLICITING public sex acts that offend

Question 6

Lewd & Lascivious Conduct:

This offense punishes the performance or solicitation of sex, which is performed (or intended to be performed):

Answer 6

in a public place.

Question 7

Lewd & Lascivious Conduct:

Does this apply to a prostitute soliciting on the street?

Answer 7

No.

Prostitutes do no solicit for the purpose of “sexual arousal or offense”

Prostitution is fundamentally a commercial activity

Question 8

Lewd & Lascivious Conduct:

To be sexual conduct, the genitals, buttocks, or breast must be:

Answer 8

touched.

Typically, these private parts are also exposed, but that it NOT required.

Question 9

A person who blatantly touches his genitals underneath his clothes (in public) has committed:

Answer 9

Lewd & Lascivious Conduct

Question 10

Lewd & Lascivious Conduct

Aside from the actual commission of a sexual act, this law punishes:

Answer 10

“the public solicitation” of a public sex act

Question 11

Lewd & Lascivious Conduct:

Aside from the actual commission of a sexual act, this law punishes “the public solicitation” of a public sex act. As a consequence, a suspect may be charged solely on the basis of what he says to another person . Officers must remember that a suspect’s speech is only a violation if it solicits the particular public sexual conduct: (blank, blank, or blank)- that the statute criminalizes.

Answer 11

touching genitals, buttocks, or breasts

Question 12

Annoying & Accosting:

May the prohibited conduct occur in either public or private?

Answer 12

Yes.

Question 13

Lewd & Lascivious Conduct:

Officers must determine whether the suspect intended or recklessly risked public exposure. (a location may be public at some times and under some circumstances, and not public at other). Remember, conduct is not automatically public because a person observes it. If the suspect took reasonable measures to secure privacy then he is:

Answer 13

not guilty of this offense.

Question 14

Audiobook:

Annoying & Accosting Sexually is basically:

Answer 14

sexual disorderly conduct.

Question 15

The suspect:

Must direct an offensive act or language at the victim;

The victim must be aware of the suspect’s actions;

A Reasonable person would find this behavior or language sexually offensive- which means that it violated contemporary standards of decency and caused real displeasure, anger, or resentment;

Without legitimate purpose, the behavior or language involved either:
-Fighting or violence;
-Creating a hazardous condition;
-Something physically offensive that amounted to an invasion of privacy; or
-Threats that would make a reasonable person fearful, including inappropriate sexually explicit langue.

Answer 15

Annoying & Accosting Sexuallty

Question 16

Annoying & Accosting Sexually:

Elements (simplified): (4)

Answer 16

1. Directed at victim
2. Victim awareness
3. Sexually offensive to reasonable person
4. Prohibited acts or language

Question 17

Annoying & Accosting Sexually

ROA:

Answer 17

Warrantless arrest in presence in public.

misdemeanor

Question 18

Lewd & Lascivious Conduct

ROA:

Answer 18

ROA: Warrantless arrest in presence in public

Misdemeanor

Question 19

This law mirrors “Disorderly Conduct”, except it covers public and private conduct with sexual overtones.

Answer 19

Annoying & Accosting Sexually

Question 20

Annoying & Accosting Sexually

Does the suspect have to intend to be offensive?

Answer 20

No.

It is only required that the suspected intended to direct his conduct toward the victim.

Question 21

13 year old Hanna and four friends were listening to music and dancing in her driveway. At 10:20 pm, the defendant drove up and stopped his car. He told the girls that he was drunk, gay, and “looking for dick”. He got out and exposed his buttocks.

Proper sexual charge:

Answer 21

Annoying & Accosting.

Question 22

Defendant encountered a female college student walking home late at night. He called her “little girl” and told her to come to his car so they could “talk”. As the victim walked away, Sullivan got out of his vehicle and followed her. He eventually got back into his car and drove away, but immediately returned. He gout out again and angrily demanded “Get in my car!” He only left when the victim began reciting his license plate number.

Proper sexual charge:

Answer 22

Annoying & Accosting.

Question 23

Annoying & Accosting.

Is one act sufficient?

Answer 23

Yes.

Question 24

A nanny was pushing a child in a stroller on her way to a coffee shop when she was approached by two men. As defendant passed within arms reach, he said “Hi nanny”, grabbed his crotch and moved his “private area up and down” (outside his pants). The nanny was disturbed.

Proper sexual charge:

Answer 24

Annoying & Accosting.

A stranger’s uninvited suggestion of sexual activity is “inherently menacing”. Defendant made his suggestion at close quarters, in the company of another man. The nanny’s sense of vulnerability was enhanced because she was pushing a young child. This one act was enough for conviction.

Question 25

Defendant stared at a 12 year old girl at a swimming pool and asked her why she was leaving on her way out. The next day, as she walked by his house, defendant leaned out the window and said he would buy her candy. When she passed by later, defendant was standing outside “singing that he fell in love with a little girl”. Both encounters made her feel uncomfortable.

Sufficient or Insufficient for Annoying & Accosting?

Answer 25

Insufficient.

Defendant’s behavior did not amount to annoying & accosting. He did not attempt to go near the girl or restrict her movement. Though he was offensive, defendant did not create a “physically offensive condition”. In the words of the court, “not all disturbing remarks are criminal.”

Question 26

Is annoying & accosting judged differently for people with intellectual abilities?

Answer 26

Yes.

Question 27

Is gender relevant to Annoying & Accosting?

Answer 27

No.

The statute refers to “annoying and accosting a person of the opposite sex” but the law not protects all people.

Question 28

“Peeping Tom” is considered:

Answer 28

Disorderly conduct.

A peeping tom causes disorder by invading the privacy of persons precisely where they are most entitled to feel secure- in their home.

Question 29

Indecent Exposure:

Elements (simplified) (3):

Answer 29

1. Intentional
2. Expose genitals
3. Cause offense

Question 30

The suspect:

Intentionally;

Exposed his or her genitals to one or more persons; and

At least one person was reasonably offended by the exposure.

Answer 30

Indecent Exposure.

Question 31

Indecent Exposure:

ROA:

Answer 31

Warrantless arrest in presence in PUBLIC

IN PRIVATE: complaint

misdemeanor

Question 32

Indecent Exposure:

Must expose GENITALS, not:

Answer 32

NOT buttocks, pubic hair, crotch, or female breasts.

Question 33

Does exposure of thong-clad buttocks qualify as Indecent Exposure?

Answer 33

No. must be genitals.

*but depending on the circumstances, it might constitute Open & Gross Lewdness

Question 34

Unlike Lewd & Lascivious, Indecent Exposure does not have to:

Answer 34

occur in public.

*although it usually does

Question 35

A highly intoxicated defendant entered a liquor store where a female clerk was working. When the clear informed him that he would not be sold alcohol, defendant began shouting profanities, told her his limp was the result of an artificial leg, dropped his pants, and turned to the clerk so that she could see his penis. He exposed himself for 25 seconds.

At trial, the clerk testified that she was concerned that the defendant might knock over bottles, and that she was “aggravated” because it was her family’s business. When asked about seeing his penis, she said “To be perfectly honest with you, it didn’t bother me”.

Will this be enough for a conviction?

Answer 35

No. Must OFFEND victim.

Her reaction did not satisfy and element of this offense, because her upset was completely unrelated to the defendant’s nudity.

Question 36

Does indecent exposure include a requirement that the exposure must be in public?

Answer 36

No.

Question 37

Is public breastfeeding legally protected?

Answer 37

Yes.

mother may breastfeed her child in any public place or establishment. Any incidental exposure during this act is not criminal.

Question 38

Public breastfeeding is legally protected.

No person or organization, except (blank) may restrict a mother who is breastfeeding.

Answer 38

a place of religious instruction or worship.

If they do, she may bring a civil action and recover atleast $500 in damages and reasonable attorney fees. The Attorney General may also obtain an injunction against the organization to prevent similar action in the future.

Question 39

Open and Gross Lewdness:

ROA:

Answer 39

Felony.

Question 40

Open and Gross Lewdness:

Elements (simplified): (5)

Answer 40

1. Intentional
2. Exposed genitals, breasts, or butt.
3. Public
4. Alarm or shock.
5. Person affected

Question 41

1. Intentional
2. Exposed genitals, breasts, or butt.
3. Public
4. Alarm or shock.
5. Person affected

Answer 41

Open and Gross Lewdness

-Felony

Question 42

The suspect:

Intentionally;

Exposed his or her genitals, buttocks, or female breasts to one or more persons; and

The suspect did so “openly” by either:
-Intending public exposure; or
-Recklessly disregarding a substantial risk of public exposure to others who might be offended by the suspects conduct;

The suspect’s act was done in such a way as to produce alarm or shock in a reasonable person; and

One or more persons were, in fact, alarmed or shocked by the suspects exposure.

Answer 42

Open & Gross Lewdness

Felony.

Question 43

Open & Gross Lewdness is different from Indecent Exposure in 4 ways:

Answer 43

For Open & Gross:

1. It is a felony
2. The exposure must be done publicly
3. The exposure may involve the buttocks or breasts, not just the genitals
4. On lookers must experience alarm or shock (not just cause “offense”, which is the standard for IE)

Question 44

Defendant’s Open & Gross Lewdness conviction was reversed because the victim never observed his genitals or buttocks, only his hand touching his groin in an act of clothed masturbation; However, his behavior did constitute:

Answer 44

Lewd & Lascivious Conduct.

Question 45

Open & Gross is primarily applied to Indecent Exposure in front of:

Answer 45

children.

ex. a 10 year old girl saw the defendant driving behind her mother’s car. The girl saw the defendant arch his back with his shirt unbuttoned. According to the girl, his left hand was” going up and down” on an object resembling a “skin colored belt”.

Question 46

Open & Gross Lewdness:

Is see through clothing sufficient for conviction?

Answer 46

Yes.

ex. defendant entered target wearing white “see through” compression shorts without underwear. One witness saw the outline of his semi erect penis and testicles through he shorts.

Question 47

Opon & Gross Lewdness is primarily applied to Indecent Exposure in front of children.

However, O&G may also be charged for (blank) involving adults.

Answer 47

blatant exposure

Question 48

Open & Gross Lewdness:

Open refers to the need for a :

Answer 48

public display.

Question 49

What constitutes a “public display” for Open & Gross Lewdness is the same as:

Answer 49

Lewd & Lascivious

Question 50

“Open” in Open & Gross Lewdness refers to the need for a public display. However, the “public” requirement is overlooked when the exposure is directed toward:

Answer 50

children.

Ex. a salesman exposed himself in a private home to children; SJC upheld his O&G conviction.

Question 52

Open and Gross Lewdness:

An (blank or blank) reaction must occur.

Answer 52

alarming or shocking

Ex. indications of alarm or shock include
-calling 911
-saying they were ‘disgusted’
-“too shocked” to report

Question 53

Sexual offenses:

Being offended is not the same as:

Answer 53

alarm or shock.

-which is was distinguishes Open & Gross from the lesser offense of Indecent Exposure

Question 54

Open & Gross Lewdness:

True or false:

Viewer’s age never eliminates the need to prove alarm or shock.

Answer 54

True.

Question 55

Open & Gross Lewdness:

A police officer may be shocked. However, an officer’s concern for other is:

Answer 55

insufficient shock.

ex. Detective’s concern was not for himself, but for the women seated on the bench. Those women, however, could not be interviewed about what they saw and whether they were alarmed or shocked. The detective’s vicarious concern was insufficient for O&G. Indecent Exposure would have worked better.

Question 56

Is an Open & Gross Lewdness charge unconstitutional?

Answer 56

No.

Question 57

Open & Gross Lewdness:

Single incident involving multiple victims- how many charges?

Answer 57

One.

O&G depends on the conduct, not the number of people who witness it.

Question 58

Secret Sexual Surveillance:

Making secret video:

ROA:

Answer 58

Arrest on Probable Cause.

Question 59

Secret Sexual Surveillance:

Disseminating secret video:

ROA:

Answer 59

Felony.

Question 60

Secret Sexual Surveillance:

ROA:

Answer 60

Making secret video= Arrest on Probable Cause

Disseminating Secret Video= Felony

Question 61

With the intent to secretly conduct this activity;

The suspect willfully photographed, videotaped, or electronically surveilled:

-Someone nude or partially nude; who was unaware and did not consent, and was at a location where he or she reasonably expected privacy; or

-The sexual or other intimate body parts of someone; without the person’s knowledge and consent; under or around that person’s clothing; and the person reasonably believed his or her parts were not visible to the public.

Answer 61

Secret Sexual Surveillance Ch. 272 Sec 105

Type 1: Secret videotaping or Photographing

AKA Upskirting

Question 62

The suspect willfully disseminated the visual image of another person;

Knowing that the visual image was obtained by secret videotaping, photographing, or electronic surveillance- without the consent of the person depicted.

Answer 62

Secret Sexual Surveillance

Type 2: Dissemination

Felony

Question 63

“To view, obtain or record a person’s visual image by the use or aid of a camera…television, or other electronic device.”

Answer 63

definition of “Electronically Surveil”

Question 64

What is “partially nude” for the purposes of Secret Sexual Surveillance?

Answer 64

“The exposure of the human genitals, buttocks, pubic area, or female breast below a point immediately above the top of the areola (colored area around the nipple).”

Note: Sexual or other intimate body parts: The same exact coverage as above, “whether naked or covered by clothing or undergarments.”

Question 65

Secret Sexual Surveillance:

Exempt Conduct: (2)

Answer 65

1. Surveillance of changing rooms: provided a conspicuously posted sign (at all entrances and inside any changing room) warns customers of the merchant’s surveillance activity.
2. A Law enforcement Officer: when acting within the scope of the officer’s authority under applicable law, or by an order or warrant issued by a court.

Question 66

Secret Sexual Surveillance:

Exempt Conduct: Surveillance of changing rooms:

Where must signs be conspicuously posted?

Answer 66

at all entrances and inside any changing room.

Question 67

Secret Sexual Surveillance:

Victim Privacy Protection: No public inspection of evidence:

Any image shall only be inspected by : (5)

Answer 67

a (1) police officer,(2) prosecutor or (3) defense attorney, (4) defendant, or (5) victim unless otherwise ordered by the court.

*A Justice of the superior or district court may issue appropriate orders to restrain or prevent the unlawful dissemination of a person’s visual image in violation of this section.

Question 68

Does the “Upskirting” law apply to people in public?

Answer 68

Yes.

ex. defendant used his cell phone to secretly videotape two underage girls under their sundresses while traveling on a ferry to Nantucket

Question 69

Does a person have a reasonable expectation of not being photographed naked while asleep in a private place?

Answer 69

Yes.

Question 70

Secret Sexual Surveillance:

Unit of prosecution is:

Answer 70

number of nude victims secretly videotaped.

ex. defendant secretly recorded 17 adults and 5 juveniles= properly charged with 22 counts of secret sexual surveillance- one per victim.

Question 71

Secret Sexual Surveillance:

What completes the crime?

Answer 71

taking the photograph/ video

Ex. defendant violated the statute when he pointed his camera at the partially nude victim and snapped her photograph. There must be proof the victim was photographed, no proof of an actual photograph. Defendant probably deleted the photo when he fled the scene after being caught in the act.

Note in above example, defendant was also properly convicted of disorderly conduct = aka “peeping tom”