A lewd, wanton and lascivious act charge usually comes from sexual conduct in a car, a park, a restroom, or another place where someone could see it. It is a misdemeanor under G.L. c. 272, § 53, but it carries real embarrassment, and the details matter. The law punishes sexual conduct in public, not sexual conduct in a place where you reasonably expected privacy.
At a Glance: Lewd, Wanton and Lascivious Acts
Up to 6 months
in jail or the house of correction, a fine up to $200, or both
Public place
you meant to be seen, or recklessly ignored a substantial risk of it
Not a registry offense
§ 53 is not on the sex offender registration list
The law: G.L. c. 272, § 53(a); G.L. c. 6, § 178C
What the Law Covers
Section 53(a) punishes “lewd, wanton and lascivious persons in speech or behavior,” along with several other offenses grouped in the same sentence. The words are old, and the courts have narrowed them. Today the charge applies only to a sexual touching done in public, or to publicly soliciting someone to do one in public. It cannot be used to punish protected speech or expressive conduct.
What the Commonwealth Must Prove
Under the District Court model jury instruction (Instruction 7.380, revised February 2026), the Commonwealth must prove four things beyond a reasonable doubt:
- You committed a sexual act, or publicly solicited another person to commit one;
- The act involved touching the genitals, buttocks, or a female breast;
- You did it either for sexual arousal or gratification, or to offend other people; and
- The act was, or was to be, committed in a public place.
The “public place” element
“Public place” does not mean a place open to the public. The Commonwealth must prove either that you intended the act to be seen by another person, or that you recklessly disregarded a substantial risk that one or more people would see it at that place and time. Reckless means more than careless: you knew, or should have known, that you were very likely to be seen, and went ahead anyway.
You cannot be found guilty if you wanted privacy for the act and took reasonable measures to secure it. The SJC has held that the statute does not apply to conduct in a location where there was little likelihood of being seen by passersby (Commonwealth v. Beauchemin, 410 Mass. 181 (1991)), or to a solicitation where it was unclear whether the conduct would happen in public or in private (Commonwealth v. Roy, 420 Mass. 1 (1995)).
Penalties
A conviction under § 53(a) carries up to 6 months in a jail or house of correction, a fine of up to $200, or both. It is a misdemeanor.
Sex Offender Registration
A lewd, wanton and lascivious act under § 53 is not on the list of registrable sex offenses in G.L. c. 6, § 178C. That list does include a second or later conviction for open and gross lewdness under c. 272, § 16, which is why the exact charge matters. See Sex Offender Registry Board (SORB).
Public Sexual Conduct Charges Compared
Lewd, wanton & lascivious · § 53(a)
A sexual touching (or public solicitation of one) in a public place
Misdemeanor: up to 6 months and/or $200. No registration
Indecent exposure · § 53(a)
Exposing yourself, with no sexual touching required
Misdemeanor: up to 6 months and/or $200
Open and gross lewdness · § 16
Felony charge for public exposure
Up to 3 years state prison, 2 years jail, or $300. A 2nd or later conviction is a registry offense
Unnatural and lascivious act · § 35
An unnatural and lascivious act with another person
Felony: up to 5 years state prison or 2½ years jail/HOC, or a $100–$1,000 fine
The law: G.L. c. 272, §§ 16, 35, 53(a); G.L. c. 6, § 178C
Defenses
- Reasonable expectation of privacy: if you sought privacy and took reasonable steps to get it, the charge fails.
- Little chance of being seen: a remote spot, a late hour, or a closed or covered space can defeat the public-place element.
- No qualifying touching: the act must involve the genitals, buttocks, or a female breast.
- Solicitation unclear: a request that does not show the act was to happen in public is not enough.
- Purpose not proved: the Commonwealth must prove the act was for sexual arousal or gratification, or to offend.
- What the witness actually saw: sightlines, lighting, distance, and the officer’s vantage point often decide these cases.
Why a Lawyer Matters
Even as a misdemeanor, a lewd conduct charge can affect your job, your licenses, and your reputation. Whether the conduct fits § 53 or the more serious § 16, and whether the place was truly public, are questions worth fighting over. Attorney William J. Barabino has defended criminal cases for 23 years. Call 781-393-5900.
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Disclaimer
This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
