House painter who masturbated inside client's house instead of painting gets off because centuries-old law doesn't account for surveillance video

The Massachusetts Appeals Court today dismissed a charge of open and gross lewdness against a painter who disrobed and strolled through a client's home masturbating instead of painting, because current state law requires the physical presence of somebody to be "alarmed or shocked" and the homeowner only got alarmed or shocked later while reviewing video from her security cameras.

The court rejected an argument by the Bristol County District Attorney's office that a theory of "virtual presence" satisfied the law's requirement that a lewd act be performed "openly" to count as criminal behavior.

The court said that a court accepting the DA's "virtual" argument might lead to the criminalization of all sorts of videoed lewd acts, many of which are now considered perfectly legal, but added it might be time for the legislature to update the law to include certain very specific acts - which would be similar to the way the legislature raced to make subway upskirting illegal after the Supreme Judicial Court concluded a similarly outdated law only applied to peeping Toms looking into private bathrooms and bedrooms, not to pervs using cameras pointed up from Green Line steps.

The current "open and gross lewdness" law has not been updated in more than 200 years, the court noted:

Accepting the Commonwealth's expansive theory of "virtual presence" under the present facts could create criminal liability whereby any recorded lewd act could rise to the level of a violation of the statute. ...

[G]iven the amount of real time, consensual sexual conduct lawfully engaged in online, treating video interaction as "virtual presence" sufficient to demonstrate openness might criminalize a broad range of activity beyond the scope contemplated by G. L. c. 272, § 16.

According to the court's summary of the case, a woman hired a painter she knew from church to update her home's interior:

The defendant met with the victim at her house two days prior to the incident to discuss the quote for the paint job. During their conversation, the defendant "pointed to one of [the] cameras inside the house and asked what those were." The victim replied that she had installed cameras in the house "after her husband had passed away and [while] her mother-in-law [was] staying at the residence." She further explained to the defendant that she used the cameras to "keep an[] eye on people who are coming in and out of the house for her [mother-in-law] when [the victim] was at work." On February 9, 2021, the defendant arrived at the victim's residence, at which time the video cameras captured the following incident.

The defendant walked around the house for approximately nine minutes, during which time he "[went] around the rooms checking the ceiling corners," "look[ed] into Camera 3," moved the ladder twice, "place[d] a drop cloth over the ladder," and "c[ame] back into the room without his shoes on." Next, the defendant entered the bathroom. Less than one minute later, he "c[ame] out of the bathroom with no pants on and [was] masturbating." He entered the room "with a cloth in his left hand and his right hand on his penis and briefly look[ed] at the camera." The defendant walked into various rooms throughout the house including the kitchen while masturbating, and looked at or "into" the camera several times. Approximately two minutes after leaving the bathroom, the defendant "ejaculate[d] into the rag he [was] holding . . .[,] walk[ed] back into the bathroom[,]" and then exited the bathroom with his pants on. He then removed the drop cloth from the ladder, moved the ladder back near the couch, cleaned the floor in the kitchen, and left the residence. "After [the defendant] finished masturbating and was grabbing his belongings he did not look at the cameras once."

On reviewing her video, the woman contacted the New Bedford police department, where a detective, after reviewing the video himself, brought the painter in for questioning, during which he confessed, because "I thought I was by myself." He was then charged with open and gross lewdness.

A district-court judge agreed with the man to dismiss the case, because his activity, while gross, was not "open" under state law, since there was nobody physically present at the time to be "shocked and alarmed" as the law requires

Prosecutors appealed, but the appeals court sided with the judge's interpretation:

The Commonwealth argues that the criminal complaint application established probable cause because "the defendant, after being advised of the presence of security cameras in the interior of the home he had been hired to paint, masturbated while looking into those cameras as he moved from room to room." Thus, the Commonwealth contends, the conduct satisfied the openness element at the probable cause stage.

Viewed in the light most favorable to the Commonwealth, the information in the criminal complaint application and police reports may indeed have been adequate to show that the defendant intended public exposure or recklessly disregarded a substantial risk of public exposure. See Quinn, 439 Mass. at 501. However, that does not end our analysis. To be "open" under G. L. c. 272, § 16, the conduct "must occur in the presence of another person who can be alarmed or shocked." Quinn, supra at 496 n.9. The "presence" requirement is well established in our case law. See Commonwealth v. Wardell, 128 Mass. 52, 53-54 (1880) (explaining under prior version of G. L. c. 272, § 16, that defendant's lewd conduct was "open" where act was intended to be seen by "persons present" and "was observed by at least one of those present").

The court continued that because the requirement for somebody to be physically present for an act by another to be considered "open" has so repeatedly affirmed by courts through the centuries that it could not broaden the law's interpretation to include the more modern concept of "virtual presence," that the legislature and the governor would have to do so.

Where the criminal complaint application contained no information from which one could reasonably infer that the victim was present within the meaning of G. L. c. 272, § 16, the conduct was not "open" as a matter of law. Therefore, the order dismissing the criminal complaint must be affirmed.