The crime of open and gross lewdness is "closely similar" to the crime of indecent exposure. Commonwealth v. Fitta, 391 Mass. 394, 396 (1984), quoting Commonwealth v. Broadland, 315 Mass. 20, 22 (1943). Indecent exposure requires "an intentional act of lewd exposure, offensive to one or more persons."
Virtually all states, including Pennsylvania, banned acts of public lewdness and indecency at common law. See, e.g., State v. Millard, 18 Vt. 574 (Vt. 1846) (collecting citations); Commonwealth v. Hardin, 10 Ky. Op. 925 (Ky. 1880) Van Houten v. State, 46 N.J.L. 16, 17 (N.J. 1884);Commonwealth v. Broadland, 315 Mass. 20, 21-22 (Mass. 1943);Messina v. State, 212 Md. 602, 605-06 (Md. 1957).
Interstate Circuit v. Dallas, 390 U.S. at 682, 88 S.Ct. at 1302. Commonwealth v. Broadland, 315 Mass. 20, 22, 51 N.E.2d 961 (1943). More recently, the Supreme Judicial Court relied in part on a case involving a conviction for the common law offense to sustain a conviction for a violation of section 16, indicating the interchangeability with which the Supreme Judicial Court views the two offenses.
See Lopez, 433 Mass. at 728, 745 N.E.2d 961. Here, the Commonwealth bore the burden of proving that the defendant intentionally exposed his genitalia to M.M. Commonwealth v. Broadland, 315 Mass. 20, 21–22, 51 N.E.2d 961 (1943). See, e.g., Commonwealth v. Swan, 73 Mass. App. Ct. 258, 261–262, 897 N.E.2d 1015 (2008) (sufficient evidence of defendant's intent to expose himself in public school bathroom).
Indecent exposure requires proof of an “intentional act of lewd exposure, offensive to one or more persons.” Commonwealth v. Swan, 73 Mass.App.Ct. 258, 261, 897 N.E.2d 1015 (2008), quoting Commonwealth v. Broadland, 315 Mass. 20, 21–22, 51 N.E.2d 961 (1943). The exposure of one's genitalia is a necessary element to indecent exposure.
These elements of the crime have been established by our case law. See, e.g., Commonwealth v. Bishop, 296 Mass. 459, 462 (1937); Commonwealth v. Broadland, 315 Mass. 20, 21-22 (1943); Commonwealth v. Swan, 73 Mass. App. Ct. at 261. As stated above, we conclude on this record that the Commonwealth's case foundered on the last element.
Commonwealth v. Fitta, 391 Mass. 394, 396 (1984), quoting Commonwealth v. Sefranka, 382 Mass. 108, 116 (1980). See Commonwealth v. Broadland, 315 Mass. 20, 22 (1943) (open and gross lewdness is "an offence at least closely similar to the common law offence of indecent exposure"). The exposure of genitalia has been defined by judicial interpretation as an essential element of the offense of indecent exposure.
We turn therefore to the Commonwealth's alternative contention, which was argued to the jury, that exposure of pubic hair falls within the ambit of the statutory prohibition in G.L.c. 272, § 53, against "indecent exposure." We have said that "[i]ndecent exposure . . . requires an intentional act of lewd exposure, offensive to one or more persons.' Commonwealth v. Broadland, [ 315 Mass. 20,] 21-22 [1943], quoting Commonwealth v. Cummings, 273 Mass. 229, 231 (1930)." Commonwealth v. Fitta, 391 Mass. 394, 396 (1984).
See Ward v. Illinois, 431 U.S. 767, 771 (1977); Rose v. Locke, 423 U.S. 48, 52-53 (1975); Commonwealth v. Adams, 389 Mass. 265, 271 (1983); Commonwealth v. Templeman, 376 Mass. 533, 538 (1978). We have stated that "[t]he 'open and gross lewdness' provision has been said to be 'closely similar' to the offense of indecent exposure, Commonwealth v. Broadland, 315 Mass. 20, 22 (1943), and has been applied primarily to indecent exposure in front of, and sexual conduct with, children." Commonwealth v. Sefranka, 382 Mass. 108, 116 (1980).
Robinson v. Berman, 594 F.2d 1, 2 (1st Cir. 1979). We have on several occasions reviewed convictions under G.L.c. 272, § 16, based on conduct similar to that presented here. As we observed in Commonwealth v. Sefranka, supra at 116: "The 'open and gross lewdness' provision [of § 16] has been said to be 'closely similar' to the offense of indecent exposure, Commonwealth v. Broadland, 315 Mass. 20, 22 (1943), and has been applied primarily to indecent exposure in front of, and sexual conduct with, children. See Commonwealth v. Templeman, 376 Mass. 533, 537-538 (1978).