COMMONWEALTH vs. PATRICK QUINN.

MARSHALL, C.J. 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. [Note 1] After denying the defendant's motion to

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dismiss, [Note 2] the judge reported two questions of law to the Appeals Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979): [Note 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." [Note 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.

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At the scene, the police officer placed the defendant under arrest for "open and gross lewdness." After receiving Miranda warnings, the defendant stated, "You stupid mother fucker you don't have indecent exposure. I didn't pull my prick out. I only pulled down my pants. It's not against the law to pull your pants down and show people your thongs."

2. Interpretation of G. L. c. 272, 16. The offense of "indecent exposure," G. L. c. 272, § 53, [Note 5] is "closely similar" to the offense of "open and gross lewdness," G. L. c. 272, § 16. 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. Commonwealth v. Arthur, 420 Mass. 535, 540-541 (1995). [Note 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

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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 (1880) (describing elements of G. L. c. 272, § 16).

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 (1996), 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 (1978) ("The history of § 16 is quite separate from that of § 53 . . ."). The "open and gross lewdness" statute was first enacted in 1784, and, for over 200 years, has remained essentially unchanged. [Note 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 (common-law offense of indecent exposure). See also Commonwealth v. Jarrett, 359 Mass. 491, 493-495 (1971) (legislative history of St. 1943, c. 377).

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 (indecent exposure prohibits "an intentional act of lewd

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exposure, offensive to one or more persons"). [Note 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 ("open and gross lewdness" construed to prohibit a defendant from "intentionally, indecently, and offensively exposing himself . . . without necessity or reasonable excuse, and in such a way as to produce alarm"). The requirement that the defendant must engage in conduct such as actually to alarm or shock another has remained unchanged since 1880. [Note 9] See, e.g., Commonwealth v. Fitta, supra at 396, quoting Commonwealth v. Wardell, supra (elements of open and gross lewdness); Commonwealth v. Guy G., 53 Mass. App. Ct. 271, 274 n.4 (2001) (same); Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 302 (1999) (same); Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901 (1996) (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.

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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 (1983) (masturbating in automobile); Commonwealth v. Dickinson, 348 Mass. 767 (1964) (same); Commonwealth v. Wardell, supra at 53 (defendant's indecent exposure "of his person"). See Commonwealth v. Poillucci, supra at 302 (masturbating in car); Commonwealth v. Montez, 45 Mass. App. Ct. 802, 806 (1997) (standing in window of apartment and masturbating); Commonwealth v. Gray, supra at 901 (oral sex). Cf. State v. Maunsell, 170 Vt. 543, 547 (1999) (affirming defendant's conviction of open and gross lewdness while masturbating through his pants and without exposure of penis). While such conduct is 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. [Note 10] The sudden exposure of buttocks

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by dropping one's pants in front of children [Note 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 (1980) (conduct that involves "touching of the . . . buttocks," covered or uncovered, "for purposes of sexual arousal, gratification, or offense" is an element of the "sex-related" criminal offense of "lewd, wanton and lascivious behavior." G. L. c. 272, § 53). [Note 12] A woman approaching a group of school children suddenly opening her blouse to expose her breasts may alarm or shock just as a man masturbating in a passing automobile might. If the conduct is intentionally committed such as to produce alarm or

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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: exposure of genitalia, but not breasts or buttocks, may be prosecuted. We see no reason to restrict the definition of open and gross lewdness in the manner he urges, and have no difficulty in concluding that a fact finder could find that the exposure of buttocks may in some circumstances alarm or shock in violation of G. L. c. 272, § 16.

3. Fair notice. While the exposure of buttocks can be prosecuted under G. L. c. 272, § 16, we agree with the defendant that he was not provided with fair notice that deliberately exposing his thong-clad buttocks may be illegal. The statute is therefore unconstitutionally vague as applied to him.

"An essential principle of due process is that a statute may not proscribe conduct 'in terms so vague that [persons] of common intelligence must necessarily guess at its meaning.' " Commonwealth v. Sefranka, supra at 110, quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). A vague statute offends due process because of "its lack of reasonably clear guidelines for law enforcement and its consequent encouragement of arbitrary and erratic arrests and prosecutions." Commonwealth v. Sefranka, supra. A statute, the terms of which do not themselves provide clear guidelines, may nonetheless be sufficiently definite because of "judicial construction, common

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law meaning, or the statutory history of particular terms," Commonwealth v. Gallant, 373 Mass. 577, 581 (1977), and such a statute may be rendered "constitutionally definite by giving it a reasonable construction." Commonwealth v. Sefranka, supra at 111.

The language of G. L. c. 272, § 16, "open and gross lewdness and lascivious behavior," neither mentions exposure of the buttocks nor, without further judicial construction, informs a person precisely which private body parts may not be exposed. In ordinary usage, "lewdness" or "lascivious behavior" [Note 13] convey no more specific meaning than the terms "lewd" and "wanton," which we have said failed to reference sufficiently definite conduct, and applied only "broadly to conduct which the speaker considers beyond the bounds of propriety." Commonwealth v. Sefranka, supra at 111, quoting Pryor v. Municipal Court for the Los Angeles Judicial Dist. 25 Cal. 3d 238, 246-247 (1979).

As to judicial construction, our decisions have made clear that the exposure of genitalia may be prohibited by G. L. c. 272, § 16. See, e.g., Commonwealth v. Fitta, supra at 395-396 (exposing penis to two ten year old boys); Commonwealth v. Adams, 389 Mass. 265, 271 (1983) (driving slowly down public way with penis exposed and masturbating). Our decisions have not otherwise provided sufficiently "clear and definite content" of the range of other conduct that is prohibited. Commonwealth v. Sefranka, supra at 115. See Commonwealth v. Arthur, 420 Mass. 535, 541 (1995) (noting that cases under G. L. c. 272, § 16, to that date "invariably have involved exposure of the genitalia"). [Note 14] And while some decisions have indicated that exposure of "buttocks" is encompassed within the zone of

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conduct prohibited by statutes outlawing "lewd" or "lascivious" behavior, those decisions did not interpret G. L. c. 272, § 16, and could not have provided notice to the defendant that his behavior would violate that statute. See, e.g., Commonwealth v. Sefranka, supra at 117-118 (noting that touching buttocks for sexual arousal may constitute offense of "lewd, wanton and lascivious persons" under G. L. c. 272, § 53); Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 566 & n.1 (2002) ("the breasts, abdomen, buttocks, thighs, and pubic area" are private areas for purposes of indecent assault and battery, G. L. c. 265, § 13H).

In short, with the exception of the exposure of genitalia, no "longstanding judicial interpretation [of G. L. c. 272, § 16] clearly conveys 'sufficiently definite warning as to the proscribed conduct.' " Commonwealth v. Fitta, supra at 396, quoting Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971). This defendant cannot be prosecuted for exposing his buttocks.

4. Conclusion. In order to satisfy the constitutional standard of specificity, we construe G. L. c. 272, § 16, to prohibit the intentional exposure [Note 15] of genitalia, buttocks, or female breasts to one or more persons. The Commonwealth must prove beyond a reasonable doubt: (1) the defendant exposed his or her, genitals, buttocks, or female breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so "openly," that is, either he or she intended public exposure, or he or she recklessly disregarded a substantial risk of public exposure, to others who might be offended by such conduct; (4) the defendant's act was done in such a way as to produce alarm or shock; and (5) one or more persons were in fact alarmed or shocked by the defendant's exposing himself or herself. See

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Instruction 5.42 of the Model Jury Instructions for Use in the District Court (1988). [Note 16] See also Commonwealth v. Guy G., supra at 274 n.4.

Our answers to the reported questions are:

1. Exposure or attempted exposure of genitalia is not an essential element of an open and gross lewdness offense prosecuted under G. L. c. 272, § 16.

2. The defendant did not 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.