Commonwealth v. Quinn
| Decision Date | 30 May 2003 |
| Docket Number | SJC-08881. |
| Citation | 439 Mass. 492 |
| Parties | COMMONWEALTH v. PATRICK QUINN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Lewdness. Open and Gross Lewdness and Lascivious Behavior. Indecent Exposure. Statute, Construction. Constitutional Law, Vagueness of statute. Due Process of Law, Vagueness of statute.
Complaint received and sworn to in the West Roxbury Division of the District Court Department on April 6, 2001.
A motion to dismiss was heard by Robert C. Rufo, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.
Jack I. Zalkind for the defendant.
Christopher Pohl, Assistant District Attorney (Joseph M. Ditkoff, Assistant District Attorney, with him) for the Commonwealth.
Present: Marshall, C.J., Spina, Cowin, Sosman, & Cordy, JJ.
In April, 2001, the defendant, Patrick Quinn, was charged in the West Roxbury Division of the District Court Department with "open and gross lewdness" in violation of G. L. c. 272, § 16.[1] After denying the defendant's motion to dismiss,[2] the judge reported two questions of law to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905:[3] (1) "Is exposure or attempted exposure of genitalia an essential element of an open and gross lewdness offense prosecuted under G. L. c. 272, § 16?"; and (2) did the defendant "have fair notice that exposure of 'thong' clad buttocks could be prosecuted as an open and gross lewdness offense under G. L. c. 272, § 16?" We transferred the report here on our own motion. We answer both questions in the negative.
1. Background. For the purpose of deciding the reported questions, we need consider only the factual assumption contained in the second question, that the defendant exposed his "'thong' clad buttocks." To explain the context in which the charge arose, however, we recite the allegations contained in a Boston police incident report concerning the defendant's arrest.
At about 3 P.M., four young girls, aged thirteen years, were walking behind their parochial school, presumably at the end of their school day. The defendant, whose automobile was parked on a nearby street, was standing outside the school, and, as one of the young girls described, he "pulled down his pants as the girls walked by exposing his buttocks along with a pair of red `thong' underwear."[4] A boy alerted a police officer on patrol in the area that there was a man behind the school "pulling his pants down showing a group of girls his `thong' underwear." From the boy's description of the perpetrator, the officer located the defendant and saw the young girls walking away from him. At the scene, the police officer placed the defendant under arrest for "open and gross lewdness." After receiving Miranda warnings, the defendant stated,
2. Interpretation of G. L. c. 272, 16. The offense of "indecent exposure," G. L. c. 272, § 53,[5] is "closely similar" to the offense of "open and gross lewdness," G. L. c. 272, § 16. Commonwealth v. Fitta, 391 Mass. 394, 396, quoting Commonwealth v. Sefranka, 382 Mass. 108, 116. See Commonwealth v. Broadland, 315 Mass. 20, 22 (). The exposure of genitalia has been defined by judicial interpretation as an essential element of the offense of indecent exposure. Commonwealth v. Arthur, 420 Mass. 535, 540-541.[6] The defendant argues that we should require the same limitation as an essential element of G. L. c. 272, § 16. We conclude that the exposure of genitalia is not an essential element of the crime of open and gross lewdness: a defendant may be convicted under G. L. c. 272, § 16, for exposing his buttocks provided, of course, that the other elements of that crime are proved beyond a reasonable doubt. See Commonwealth v. Fitta, supra, quoting Commonwealth v. Wardell, 128 Mass. 52, 53 ().
We interpret statutes that address similar subject matter "so that effect is given to every provision in all of them." Green v. Wyman-Gordon Co., 422 Mass. 551, 554, quoting 2B Singer, Sutherland Statutory Construction § 51.02, at 122 (5th ed. 1992). Although the two statutes, "open and gross lewdness," G. L. c. 272, § 16, and "indecent exposure," G. L. c. 272, § 53, are similar, Commonwealth v. Fitta, supra at 396, they have different elements, reflecting (in part) their different origins. See Commonwealth v. Templeman, 376 Mass. 533, 538 (). The "open and gross lewdness" statute was first enacted in 1784, and, for over 200 years, has remained essentially unchanged.[7] St. 1784, c. 40, § 3. In contrast, the crime of "indecent exposure" was not codified until 1943, see St. 1943, c. 377, although it was recognized as an offense at common law. See, e.g., Commonwealth v. Broadland, supra at 22 (). See also Commonwealth v. Jarrett, 359 Mass. 491, 493-495 ().
The two statutes prohibit different conduct. Any intentional exposure of genitalia may be prosecuted as a misdemeanor under G. L. c. 272, § 53. See Commonwealth v. Fitta, supra at 396, quoting Commonwealth v. Broadland, supra at 21-22 ().[8] Conviction of "open and gross lewdness," G. L. c. 272, § 16, on the other hand, requires the Commonwealth to prove, among other elements, intention, manner (done in such a way as to produce alarm or shock), and impact (does in fact alarm or shock). See Commonwealth v. Wardell, supra at 53 (). The requirement that the defendant must engage in conduct such as actually to alarm or shock another has remained unchanged since 1880.[9] See, e.g., Commonwealth v. Fitta, supra at 396, quoting Commonwealth v. Wardell, supra (); Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 274 n.4 (same); Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 302 (same); Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901 (same). Whichever "private parts of one's body," Commonwealth v. Arthur, supra at 539, is intentionally exposed, the fact finder must be persuaded beyond a reasonable doubt that the defendant acted in such a way as to alarm or shock. In contrast, to sustain a conviction of indecent exposure, G. L. c. 272, § 53, the Commonwealth is not required to prove the elements of alarm or shock. Greater precision of the offensive conduct (exposure of genitalia) is therefore necessary under that statute to give a defendant constitutionally adequate notice of the circumscribed offensive conduct.
The defendant notes that in Commonwealth v. Arthur, supra at 541, we commented that convictions of "open and gross lewdness" pursuant to G. L. c. 272, § 16, "invariably have involved exposure of the genitalia," citing Commonwealth v. Adams, 389 Mass. 265, 271 (masturbating in automobile); Commonwealth v. Dickinson, 348 Mass. 767 (same); Commonwealth v. Wardell supra at 53 (). See Commonwealth v. Poillucci, supra at 302 (masturbating in car); Commonwealth v. Montez, 45 Mass. App. Ct. 802, 806 (); Commonwealth v. Gray, supra at 901 (oral sex). Cf. State v. Maunsell, 170 Vt. 543, 547 (). While such conduct is surely sufficient to support a conviction under G. L. c. 272, § 16, in none of these cases did the court suggest that "lewd and lascivious behavior" is confined to exposure of genitals.[10] The sudden exposure of buttocks by dropping one's pants in front of children[11] in an area (school) where such conduct would be wholly unexpected may alarm or shock, as surely as revealing one's penis. Cf. Commonwealth v. Sefranka, 382 Mass. 108, 117-118 .[12] A woman approaching a group of school children suddenly opening her blouse to expose her breasts may alarm or shock as surely as a man masturbating in a passing automobile. If the conduct is intentionally committed such as to produce alarm or shock, it may be prohibited. See Commonwealth v. Fitta, supra at 396; Commonwealth v. Wardell, supra at 53.
Pointing to the number of people who are seen wearing "thongs" on public beaches, the defendant argues that unless limited to exposure of genitalia, our statute outlawing lewd and lascivious conduct will be cast adrift in the "shifting community notions of good taste." A woman revealing her knees in public in 1890 may have offended the then community notions of good taste. But the issue then, as now, is not whether a defendant's conduct offends "good taste," but whether the conduct is such that it causes alarm or shock. Today, society may tolerate far greater displays of nudity, including the exposure of genitalia on public beaches. But the defendant does not argue that the crime of "open and gross lewd and lascivious behavior" has become obsolete such that all public displays of nudity, no matter how alarming or shocking, must be tolerated. In his view, it is simply a matter of degree:...
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