Opinion
No. 11–P–1008.
2013-04-12
John DOE, Sex Offender Registry Board No. 69202 v. SEX OFFENDER REGISTRY BOARD.
By the Court (TRAINOR, VUONO & SULLIVAN, JJ.
This case was originally heard by a panel comprised of Justices Trainor, Smith, and Sullivan. Following the death of Justice Smith, Justice Vuono was added to the panel to participate in this decision.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe No. 69202, appeals from a Superior Court order that affirms the final decision of the Sex Offender Registry Board requiring him to register as a level 3 sex offender. The only issue on appeal is whether the Washington crime of indecent exposure, Wash. Rev.Code. § 9A.88.010, is a “like violation”—for purposes of G.L. c. 6, § 178C—of the Massachusetts offense of open and gross lewdness and lascivious behavior, G.L. c. 272, § 16.
In 2003, the plaintiff pleaded guilty in Cambridge District Court to one count of open and gross lewdness and lascivious behavior. Prior to that, the plaintiff was convicted several times of indecent exposure in Washington State. The definition of “sex offense,” within the meaning of the statute, includes “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior.” G.L. c. 6, § 178C, as amended by St.1999, c. 74, § 2. So, if the prior Washington offenses are not deemed “like violations,” the plaintiff's lone Massachusetts offense would not constitute a “sex offense,” and he would not be required to register as a sex offender. See G.L. c. 6, § 178C. “Because the registration requirement is defined in terms of offenses, the determination whether an offense from another jurisdiction is a ‘like violation’ is defined also in terms of offenses and not conduct.” John Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 619 (2010). Accordingly, we compare the elements of the crimes to determine if an out-of-State violation is a “like violation.”
In the State of Washington, “[a] person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm.” Wash. Rev.Code § 9A.88.010. “The essence of the crime is the lascivious exhibition of those private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others.” State v. Eisenshank, 10 Wash.App. 921, 924 (1974), citing State v. Galbreath, 69 Wash.2d 664 (1966).
In Massachusetts, the crime of open and gross lewdness and lascivious behavior, G.L. c. 272, § 16,
requires proof of five elements: “that the defendant (1) exposed genitals, breasts, or buttocks; (2) intentionally; (3) openly or with reckless disregard of public exposure; (4) in a manner so ‘as to produce alarm or shock’; (5) thereby actually shocking or alarming one or more persons.” Commonwealth v. Swan, 73 Mass.App.Ct. 258, 260–261 (2008).
The text of the G.L. c. 272, § 16, as amended by St.1987, c. 43, reads: “A man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.”
The Washington statute does not explicitly require proof of the victim being shocked or alarmed.
From this, the plaintiff argues that the proof required for a Washington conviction would not necessarily lead to a conviction of the Massachusetts crime of open and gross lewdness and lascivious behavior. In other words, the State of Washington does not need to prove any reaction whatsoever in the victim to convict the defendant of indecent exposure. For the crime of open and gross lewdness and lascivious behavior, however, the Commonwealth must prove shock or alarm in the victim to support a conviction. Therefore, the plaintiff reasons, the Washington crime of indecent exposure is not a “like violation” to the Massachusetts crime of open and gross lewdness and lascivious behavior. We disagree.
But a victim is implicitly required. “A targeted victim is implicit in the statutory language [of § 9A.88.010] because only a victim could be affronted or alarmed by the obscene conduct.” State v. Snedden, 149 Wash.2d 914, 919 (2003).
The plaintiff's argument hinges on the Supreme Judicial Court's statement that the “ ‘like violation’ requirement [is] satisfied where it is shown that proof necessary for the out-of-State conviction would also warrant a conviction of a Massachusetts offense for which registration is required.” Doe No. 151564, supra at 616. The plaintiff reads this language too narrowly. “[T]he Supreme Judicial Court did not hold that this was the only way the ‘like violation’ requirement could be satisfied.” Commonwealth v. Bell, 83 Mass.App.Ct. 82, 87 (2013). Rather, the Supreme Judicial Court affirmed the analysis in Commonwealth v.. Becker, 71 Mass.App.Ct. 81, 87 (2008), cert. denied, 129 S.Ct. 320 (2008), quoting from Commonwealth v. Boucher, 438 Mass. 274, 276 (2002), that “a ‘like violation’ ... means ‘the same or nearly the same.’ “ See Doe No. 151564, supra at 614. “The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a ‘like violation.’ “ Id. at 615–616. General Laws c. 6, § 178C, only requires that the essence of the two crimes be similar. See Becker, supra at 81; Doe No. 151564, supra at 615.
Here, the essence of the two crimes is similar because the conduct prohibited by the Washington statute is essentially the same as the conduct prohibited by the Massachusetts statute. See id. at 617. Both statutes prohibit the intentional exhibition of a person's private parts to cause shock or alarm. See G.L. c. 272, § 16; Eisenshank, 10 Wash.App. at 924. That the Massachusetts crime requires proof of the victim's reaction does not necessarily invalidate its similarity to the out-of-State crime for purposes of G.L. c. 6, § 178C. See Bell, supra. “[T]he legislature chose the word ‘like’ rather than the word ‘identical’ to describe the required relationship between an offense from another jurisdiction and a Massachusetts sex offense.” Doe No. 151564, supra at 616. Because the offenses in question are sufficiently similar, we conclude that the plaintiff's indecent exposure convictions in Washington are “like violations” of the Massachusetts offense of open and gross lewdness and lascivious behavior.
Judgment affirmed.