Being charged with indecent exposure can feel humiliating, especially when the label does not match what actually happened. Many people accused of this offense in Massachusetts are not doing anything sexual at all. A common example is someone who urinated behind a bar, on the side of a road, or in a park because no restroom was available. Others were changing clothes in a car or at the beach, had a wardrobe malfunction, went skinny dipping, or were seen through a window inside their own home. Those situations can still lead to a police report or a criminal complaint, but they are very different from the conduct the most serious charges were designed to address.
This guide explains indecent exposure under G.L. c. 272, § 53, how it differs from the felony of open and gross lewdness under G.L. c. 272, § 16, where lewd, wanton and lascivious conduct fits, which offenses can lead to sex offender registration, and what to do if you are accused.
Many Indecent Exposure Charges Involve Ordinary Mistakes, Not Sexual Intent
Police and complainants do not always know the full story. A person relieving themselves in a dark corner of a parking lot, a beachgoer whose towel slipped, or someone walking past an uncovered window at home may be reported as “exposing” themselves. The words on a police report can make an ordinary lapse in judgment sound far worse than it was.
Several facts usually matter most:
- Intent. Both indecent exposure and open and gross lewdness require an intentional exposure. The current District Court model jury instruction for open and gross lewdness explains that an exposure that was “merely an accident or the result of carelessness” is not enough — it must be the result of a conscious and deliberate act.
- Whether the exposure was open and deliberate. For open and gross lewdness, the Commonwealth must also prove that the person either intended exposure to another person or recklessly disregarded a substantial risk of exposure to someone who might be offended. Trying to stay out of sight points the other way.
- Whether anyone actually saw it, and how they reacted. Indecent exposure requires that one or more persons were offended. Open and gross lewdness requires more: that at least one person was actually alarmed or shocked, and that a reasonable person would have been.
- Location and timing. A secluded spot at 2 a.m. is viewed very differently from a crowded playground at noon.
None of this means an ordinary mistake can never be charged. It means the details matter, and a good defense often starts by putting the event back into its real-world context.
Why the Charge Matters: Bylaw Ticket, Misdemeanor, or Felony
The same event can be handled very differently. In many Massachusetts cities and towns, public urination is a local bylaw or ordinance violation, typically handled with a fine rather than a criminal record. Charged as indecent exposure, it becomes a criminal misdemeanor; charged as open and gross lewdness, a felony.
That choice affects the maximum penalty, whether a criminal record is created, how the case looks on a background check, and whether registration could ever become an issue. Part of a defense lawyer’s job is to steer the case toward the charge — or non-criminal outcome — that actually fits the facts.
Indecent Exposure Under G.L. c. 272, § 53: What the Commonwealth Must Prove
Under the District Court model jury instruction for indecent exposure, the Commonwealth must prove three things beyond a reasonable doubt:
- That the defendant exposed their genitals to one or more persons;
- That the defendant did so intentionally; and
- That one or more persons were offended by the exposure.
Two points surprise many people. First, this misdemeanor applies only to exposure of the genitals — not the buttocks, female breasts, pubic hair, or general genital area (Commonwealth v. Arthur, 420 Mass. 535 (1995)). Second, it does not have to occur in a public place, and exposure to one person can be enough.
Indecent exposure is punishable by up to six months in a jail or house of correction, a fine of up to $200, or both. Unlike open and gross lewdness, it does not require proof that anyone was alarmed or shocked — only offended.
Open and Gross Lewdness Under G.L. c. 272, § 16: The Felony Charge
Open and gross lewdness and lascivious behavior is a much more serious charge. Under § 16, it is punishable by up to three years in state prison, up to two years in jail, or a fine of up to $300. Because it carries possible state prison time, it is a felony.
The current model jury instruction (revised February 2026) lists five elements:
- The defendant exposed their genitals, buttocks, or female breast to one or more persons;
- The defendant did so intentionally;
- The defendant did so “openly” — intending exposure to another person, or recklessly disregarding a substantial risk of exposure to someone who might be offended;
- The act was done in a way that would alarm or shock a reasonable person; and
- At least one person was actually alarmed or shocked.
The shock-or-alarm requirement separates the felony from the misdemeanor. In Commonwealth v. Ora, 451 Mass. 125 (2008), the Supreme Judicial Court explained that the display must be intentional, done in a manner to produce alarm or shock, and actually produce alarm or shock. In Commonwealth v. Maguire, 476 Mass. 156 (2017), the Court reversed a conviction because there was insufficient evidence that anyone was actually shocked or alarmed, ordered entry of the lesser misdemeanor of indecent exposure, and clarified that the reaction must also be objectively reasonable. The model instruction adds that alarm or shock means a serious negative emotional reaction — mere nervousness or offense is not enough.
Lewd, Wanton and Lascivious Conduct Under § 53
Section 53 also punishes “lewd, wanton and lascivious persons in speech or behavior,” with the same maximum penalty as indecent exposure. Courts have narrowed this language. Under the current model instruction, it requires a sexual act (or public solicitation of one) involving touching of the genitals, buttocks, or female breast, for sexual gratification or to offend, in a public place — meaning the person intended to be seen or recklessly disregarded a substantial risk of being seen. Someone who took reasonable measures to secure privacy cannot be convicted under this theory. For a fuller explanation, see Lewd, Wanton and Lascivious Acts in Massachusetts.
Sex Offender Registration: Which of These Offenses Are Registrable?
Fear of the registry is often the first worry. Here is what the registration statute, G.L. c. 6, § 178C, says about these charges:
- Indecent exposure (§ 53): not on the list of registrable sex offenses.
- Lewd, wanton and lascivious conduct (§ 53): not on the list of registrable sex offenses.
- Open and gross lewdness (§ 16): a first conviction is not registrable, but a “second and subsequent adjudication or conviction” is.
The Supreme Judicial Court held in Commonwealth v. Wimer, 480 Mass. 1 (2018), that two open and gross lewdness convictions entered in the same proceeding do not count as a “second and subsequent” conviction; the second must come after the first. Registration questions can still be fact-specific — for example, with prior out-of-state convictions — so get individualized advice on any § 16 charge. For background on classification levels, see Sex Offender Registry Board (SORB).
How These Cases Often Start: Applications for a Complaint and Show-Cause Hearings
Many exposure cases begin not with an arrest but with an application for a criminal complaint, filed by police or a private citizen, and a hearing before a clerk-magistrate. Under G.L. c. 218, § 35A, a person who has not been arrested is generally entitled to notice and an opportunity to be heard on a misdemeanor application such as indecent exposure, subject to limited exceptions. Whether a hearing is offered on a felony application such as open and gross lewdness depends on who filed it and the circumstances.
The clerk-magistrate decides whether there is probable cause to issue a criminal complaint. It is not a trial, and these hearings are generally not open to the public. It is often the best early chance to keep a matter from becoming a criminal case — for example, by showing the facts describe an ordinary mistake, or that the elements are not there. For more, see What Is a Show-Cause Hearing in Massachusetts?.
Show-Cause Wins in Related Charges
Attorney Barabino has won clerk-magistrate show-cause hearings in more than 40 different charge types. Relevant examples include Open and Gross Lewdness, Indecent Exposure, Annoying and Accosting, Disorderly Conduct, Assault and Battery, Threats, and Witness Intimidation, among others. Learn more on his Clerk Magistrate Hearings page. Every case turns on its own facts, and past results do not guarantee a similar outcome.
Common Defenses to Indecent Exposure and Open and Gross Lewdness
Every defense depends on the evidence, but these themes are common:
- No intentional exposure. A slipped towel, a torn seam, or a brief moment while changing is not a conscious, deliberate exposure. Accidents and carelessness are not enough.
- Not open or reckless. Someone who urinated behind a dumpster at night or changed in a parked car was usually trying not to be seen, which can undercut the “openly” element.
- Wrong body part for § 53. Indecent exposure requires exposure of the genitals. If only buttocks or breasts were visible — for example, a swimmer seen from behind — that misdemeanor does not fit, although § 16 could still be alleged.
- No one was offended, alarmed, or shocked. If no one saw it, or a witness felt only discomfort, disgust, or concern for others, the felony’s shock-or-alarm element may be missing, as in Maguire.
- Privacy at home. Being seen through your own window is not automatically a crime; the questions are intent and whether you recklessly ignored a substantial risk of being seen.
- Identification and reliability. Distance, lighting, and brief glimpses can lead to honest mistakes.
- Charge reduction. Even when something happened, the right outcome may be a lesser charge, a bylaw fine, or a disposition that avoids a conviction.
Collateral Consequences: CORI, Employment, and Immigration
Once a person is arraigned, the case becomes part of their Massachusetts criminal record (CORI); what a given employer or landlord can see depends on their level of access and how the case ends. Employers, landlords, schools, and licensing boards may react strongly to a sex-related label, especially for jobs involving children or vulnerable adults. Sealing may become available after waiting periods under G.L. c. 276, § 100A — generally three years for misdemeanors and seven years for felonies — but it is not automatic, and people classified as level 2 or level 3 sex offenders are not eligible to seal sex offenses.
For non-citizens, a sex-related charge or conviction can carry serious immigration consequences. Speak with an immigration attorney before accepting any plea or admission.
What to Do If You Are Accused
- Stay calm and do not explain. You have the right to remain silent, and trying to talk your way out of it often creates evidence used against you.
- Write down what happened while it is fresh — for your lawyer only.
- Preserve helpful evidence, such as receipts, photos of the location, and names of people who were with you.
- Take any show-cause notice seriously; it may be your best early chance to stop a complaint.
- Talk to a defense lawyer early — ideally before the show-cause hearing or arraignment.
Frequently Asked Questions
Can I be charged with indecent exposure for urinating in public?
It can happen, but it is often not the right charge. Many communities treat public urination under local bylaws with a fine. Indecent exposure requires an intentional exposure of the genitals to another person that offended someone. Open and gross lewdness also requires open or reckless exposure that actually alarmed or shocked someone. A secluded location and an effort to stay out of sight can matter.
Is indecent exposure a felony in Massachusetts?
No. Indecent exposure under § 53 is a misdemeanor punishable by up to six months in a jail or house of correction, a fine of up to $200, or both. Open and gross lewdness under § 16 is a felony.
Will I have to register as a sex offender?
Not for indecent exposure or lewd, wanton and lascivious conduct under § 53, or for a first open and gross lewdness conviction. A second and subsequent open and gross lewdness conviction is registrable. Get advice about your specific history.
Can I be charged for something that happened inside my own home?
Possibly, because indecent exposure does not require a public place. But the exposure must be intentional, and open and gross lewdness requires that you intended to be seen or recklessly disregarded a substantial risk of it. Reasonable privacy steps matter.
Questions About an Indecent Exposure Charge in Massachusetts?
If you have received a show-cause notice, summons, or complaint for indecent exposure, open and gross lewdness, or a related charge, an embarrassing moment does not have to define your future. The Law Office of William J. Barabino in Medford represents people throughout Greater Boston and Massachusetts, and Attorney Barabino has spent over 23 years defending people in Massachusetts courts.
Call 781-393-5900 to talk confidentially about what happened, your court date, and your options.
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Disclaimer
This article is for general educational purposes only and is not legal advice. Massachusetts statutes, court decisions, model jury instructions, and local bylaws can change, and every case turns on its own facts. Reading this page does not create an attorney-client relationship. If you are facing an indecent exposure, open and gross lewdness, or related charge, consult a licensed Massachusetts criminal defense attorney about your situation.
