CL Ch. 10- Sexual Exposure or Surveillance Flashcards
Lewd & Lascivious Conduct:
A sexual act which involves the touching of:
the genitals, buttocks, or female breasts.
Lewd & Lascivious Conduct:
Elements: (Simplified) (4)
- Committed OR Solicited
- Sex Act (Genitals, buttocks, female breasts)
- Arousal or Offense
- Public.
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.
Lewd & Lascivious Conduct
ROA: Warrantless arrest in presence in public
Misdemeanor
Audiobook:
Basically, Lewd & Lascivious is :
Consensual public sex that offends.
Misdemeanor
Audiobook:
“Hey baby night boobs, I’d like to grab those!”
Proper charge:
Lewd & Lascivious Conduct:
SOLICITING public sex acts that offend
Lewd & Lascivious Conduct:
This offense punishes the performance or solicitation of sex, which is performed (or intended to be performed):
in a public place.
Lewd & Lascivious Conduct:
Does this apply to a prostitute soliciting on the street?
No.
Prostitutes do no solicit for the purpose of “sexual arousal or offense”
Prostitution is fundamentally a commercial activity
Lewd & Lascivious Conduct:
To be sexual conduct, the genitals, buttocks, or breast must be:
touched.
Typically, these private parts are also exposed, but that it NOT required.
A person who blatantly touches his genitals underneath his clothes (in public) has committed:
Lewd & Lascivious Conduct
Lewd & Lascivious Conduct
Aside from the actual commission of a sexual act, this law punishes:
“the public solicitation” of a public sex act
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.
touching genitals, buttocks, or breasts
Annoying & Accosting:
May the prohibited conduct occur in either public or private?
Yes.
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:
not guilty of this offense.
Audiobook:
Annoying & Accosting Sexually is basically:
sexual disorderly conduct.
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.
Annoying & Accosting Sexuallty
Annoying & Accosting Sexually:
Elements (simplified): (4)
- Directed at victim
- Victim awareness
- Sexually offensive to reasonable person
- Prohibited acts or language
Annoying & Accosting Sexually
ROA:
Warrantless arrest in presence in public.
misdemeanor
Lewd & Lascivious Conduct
ROA:
ROA: Warrantless arrest in presence in public
Misdemeanor
This law mirrors “Disorderly Conduct”, except it covers public and private conduct with sexual overtones.
Annoying & Accosting Sexually
Annoying & Accosting Sexually
Does the suspect have to intend to be offensive?
No.
It is only required that the suspected intended to direct his conduct toward the victim.
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:
Annoying & Accosting.
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:
Annoying & Accosting.
Annoying & Accosting.
Is one act sufficient?
Yes.
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:
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.
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?
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.”
Is annoying & accosting judged differently for people with intellectual abilities?
Yes.
Is gender relevant to Annoying & Accosting?
No.
The statute refers to “annoying and accosting a person of the opposite sex” but the law not protects all people.
“Peeping Tom” is considered:
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.
Indecent Exposure:
Elements (simplified) (3):
- Intentional
- Expose genitals
- Cause offense
The suspect:
Intentionally;
Exposed his or her genitals to one or more persons; and
At least one person was reasonably offended by the exposure.
Indecent Exposure.
Indecent Exposure:
ROA:
Warrantless arrest in presence in PUBLIC
IN PRIVATE: complaint
misdemeanor
Indecent Exposure:
Must expose GENITALS, not:
NOT buttocks, pubic hair, crotch, or female breasts.
Does exposure of thong-clad buttocks qualify as Indecent Exposure?
No. must be genitals.
*but depending on the circumstances, it might constitute Open & Gross Lewdness
Unlike Lewd & Lascivious, Indecent Exposure does not have to:
occur in public.
*although it usually does
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?
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.
Does indecent exposure include a requirement that the exposure must be in public?
No.
Is public breastfeeding legally protected?
Yes.
mother may breastfeed her child in any public place or establishment. Any incidental exposure during this act is not criminal.
Public breastfeeding is legally protected.
No person or organization, except (blank) may restrict a mother who is breastfeeding.
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.
Open and Gross Lewdness:
ROA:
Felony.
Open and Gross Lewdness:
Elements (simplified): (5)
- Intentional
- Exposed genitals, breasts, or butt.
- Public
- Alarm or shock.
- Person affected
- Intentional
- Exposed genitals, breasts, or butt.
- Public
- Alarm or shock.
- Person affected
Open and Gross Lewdness
-Felony
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.
Open & Gross Lewdness
Felony.
Open & Gross Lewdness is different from Indecent Exposure in 4 ways:
For Open & Gross:
- It is a felony
- The exposure must be done publicly
- The exposure may involve the buttocks or breasts, not just the genitals
- On lookers must experience alarm or shock (not just cause “offense”, which is the standard for IE)
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:
Lewd & Lascivious Conduct.
Open & Gross is primarily applied to Indecent Exposure in front of:
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”.
Open & Gross Lewdness:
Is see through clothing sufficient for conviction?
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.
Opon & Gross Lewdness is primarily applied to Indecent Exposure in front of children.
However, O&G may also be charged for (blank) involving adults.
blatant exposure
Open & Gross Lewdness:
Open refers to the need for a :
public display.
What constitutes a “public display” for Open & Gross Lewdness is the same as:
Lewd & Lascivious
“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:
children.
Ex. a salesman exposed himself in a private home to children; SJC upheld his O&G conviction.
Open and Gross Lewdness:
An (blank or blank) reaction must occur.
alarming or shocking
Ex. indications of alarm or shock include
-calling 911
-saying they were ‘disgusted’
-“too shocked” to report
Sexual offenses:
Being offended is not the same as:
alarm or shock.
-which is was distinguishes Open & Gross from the lesser offense of Indecent Exposure
Open & Gross Lewdness:
True or false:
Viewer’s age never eliminates the need to prove alarm or shock.
True.
Open & Gross Lewdness:
A police officer may be shocked. However, an officer’s concern for other is:
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.
Is an Open & Gross Lewdness charge unconstitutional?
No.
Open & Gross Lewdness:
Single incident involving multiple victims- how many charges?
One.
O&G depends on the conduct, not the number of people who witness it.
Secret Sexual Surveillance:
Making secret video:
ROA:
Arrest on Probable Cause.
Secret Sexual Surveillance:
Disseminating secret video:
ROA:
Felony.
Secret Sexual Surveillance:
ROA:
Making secret video= Arrest on Probable Cause
Disseminating Secret Video= Felony
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.
Secret Sexual Surveillance Ch. 272 Sec 105
Type 1: Secret videotaping or Photographing
AKA Upskirting
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.
Secret Sexual Surveillance
Type 2: Dissemination
Felony
“To view, obtain or record a person’s visual image by the use or aid of a camera…television, or other electronic device.”
definition of “Electronically Surveil”
What is “partially nude” for the purposes of Secret Sexual Surveillance?
“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.”
Secret Sexual Surveillance:
Exempt Conduct: (2)
- 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.
- 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.
Secret Sexual Surveillance:
Exempt Conduct: Surveillance of changing rooms:
Where must signs be conspicuously posted?
at all entrances and inside any changing room.
Secret Sexual Surveillance:
Victim Privacy Protection: No public inspection of evidence:
Any image shall only be inspected by : (5)
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.
Does the “Upskirting” law apply to people in public?
Yes.
ex. defendant used his cell phone to secretly videotape two underage girls under their sundresses while traveling on a ferry to Nantucket
Does a person have a reasonable expectation of not being photographed naked while asleep in a private place?
Yes.
Secret Sexual Surveillance:
Unit of prosecution is:
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.
Secret Sexual Surveillance:
What completes the crime?
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”
