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Detective's disgust not enough to arrest man for stroking his naked penis at a Green Line stop, court rules
By adamg on Tue, 01/03/2017 - 10:51am
The Supreme Judicial Court today overturned a Dorchester man's convictions for open and gross lewdness and lascivious behavior at the Hynes Green Line stop in October, 2010 because prosecutors didn't present any witnesses to testify they were "shocked" or "alarmed" at the way he openly displayed his genitals, as required by Massachusetts public-decency laws.
Lawrence Maguire was arrested while awaiting trial on a similar charge for an incident on the Red Line two months earlier. A Boston Municipal Court jury found him not guilty in that case; another jury then convicted him in the Hynes case.
At Maguire's trial on the Green Line incident, a Transit Police detective testified he was "disgusted" at watching Maguire appear to rub one out in the direction of two or three women sitting on a bench on the outbound side of Hynes. In court, the detective demonstrated the action Maguire was allegedly taking during his testimony. He added Maguire spotted him, zipped up and tried to run away and that he never spoke to the women.
But state law and past court decisions relating to such activities require proof that somebody expressed "shock" or "alarm" at them for conviction, and the detective's disgust - and concern about the women he thought were being "victimized" - was not enough, because "disgust" is not the same as "shock" or "alarm," the state's highest court ruled.
In this case, the detective was the only eyewitness who testified to the defendant's conduct. There was no evidence that the women seated on the bench or any other person noticed the defendant or his actions. The detective's testimony was that he was "disgusted" after viewing the defendant's exposed penis, not for himself, but rather out of "concern" for the women seated on the bench. While we do not discount the sincerity of the detective's concern, there is nothing to suggest that the women themselves experienced any strong negative emotion, such as fright or intimidation. ... Indeed, the women remained seated while the detective traversed the station platform and stairs, and while the defendant's penis was exposed.
The court continued, by delineating the difference between "disgust" and "shock" and "alarm:"
Vicarious concern for other people or even disgust does not "convert any ordinary indecent exposure case into one for open and gross lewdness." ... Someone must be personally and "in fact" "shocked or alarmed" by the conduct; it is not sufficient that someone merely might be. ...
In this case, the detective observed an exposed penis and testified that he was "disgusted" and concerned for others. ... Nothing about his testimony or his actions, however, would have permitted a rational jury to find that he (or anyone else) personally experienced shock or alarm.
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| Attachment | Size |
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 Complete Maguire ruling | 146.87 KB |
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Comments
Tips for the next trial
Make sure to say that you were "shocked" and "alarmed".
Or maybe it's time to update the law to say, "If you pull it out, you're going away."
Took me a careful read
but the very last bit of quote implied he was (could be?) guilty of indecent exposure, but that they specifically overturned "open and gross lewdness and lascivious behavior."
This is no way a judgment by me on if these should be different, if the criteria are correct, etc etc etc. But it did take a careful read to at least come up with the fact that he was guilty of *something*, which I suppose is reassuring...
I'm not claiming adam was being intentionally deceptive (I don't think he was), but it is not obvious from his description that Maguire wasn't acquitted of all wrongdoing.
Agreed
From reading the judgment, it sounds like the detective prevented the more serious crime (aka if the nearby women had eventually noticed and became "alarmed and disgusted"). Therefore only the indecent exposure charge makes sense. This is more like attempted "open and gross lewdness and lascivious behavior."
Shocked and alarmed
is a ridiculous standard.
I worked at a job where we had problems with this kind of behavior in our facility. To combat it, I became the sexual harassment trainer, training staff to properly and carefully deter, identify, respond, and report these things in a way that would create the effective documentation we needed to ban the person from the premesis.
Most of what was keeping my staff from effectively dealing with these behaviors was their gut instinct of "shock" and "alarm." They were too shocked and ashamed to deal with the person and were too embarrassed to use the necessary clinical terms to report them, especially in front of their supervisors. In training, we went over these topics until everyone was comfortable dealing with them without being emotionally shocked and alarm.
I guess what that means, then, is that no one doing this at my facility was breaking a law, because my staff were specifically trained to handle inappropriate sexual behavior without becoming shocked and alarmed.
wot?
He exposed his penis (wee wee, willie, tool,etc.), and masturbated (jerked/jacked off). How hard (no pun intended) is that?
open and gross lewdness and lascivious behavior
The problem with your proposed change is that a guy taking a leak against a wall in an empty alley can now be charged with "open and gross lewdness and lascivious behavior" if a cop walks by and sees nothing but his back and a stream of urine hitting the wall. I'm no lawyer but I think the requirement is to differentiate between ordinary indecent exposure and directing your behavior at people with the intent to elicit a reaction. With the facts of this case it sounds like the wrong charges were applied because they didn't have the evidence required (e.g. the women who may or may not have seen him).
"I concur." - Frank Abagnale, Jr.
I agree with this analysis and if it is correct, the detective and/or prosecutor paid attention to detail insufficiently or mischarged.
Sad that people can get away
Sad that people can get away with this. Just sad.
This poor cop has no luck!
Read the court ruling and Google Detective Sean Conway a few year ago he risked his life saving a guy at Park Street Station and he gets accused of police brutality. My advice to him stay out of the subway.
Geez
I never look surprised.. and instruct others not to do so either. I think it stops these folks in their tracks.
But the cell phone images were not enough? I mean someone was disgusted enough to take a photo of him, so isn't that enough? If it wasn't such a big deal, no picture would exist.
Even still.. open and lewd act isn't enough? I've heard of guys doing far less (i.e. taking a piss) and getting more punishment.
Seriously
I wouldn't know what I'd do if that sad sack bleepbag did that in front of me let alone my female friends. In NYC street justice still rules on the mta that part of olde New York will never go away.
This is why I hate our legal
This is why I hate our legal system.
I hear too many stories of people ending up on the sex offender registry because they pee facing the wall in a deserted alley. But then someone who actually commits a visible sex act in a T station gets off (so to speak) because the testifying cop doesn't use a certain magic word to describe his own reaction.
The court is more interested in playing word games than enforcing the intent of the law and protecting the public or individual rights.
I'm sure the legislators who wrote the open and gross lewdness laws weren't trying to prevent shock. They were trying to prevent exactly the sort of thing this guy was doing.
He looks to have a "great"
He looks to have a "great" team of lawyers. Seriously fuck you, this guy should have been locked up plain and simple but some legal theaterics undermined justice once again. Here's hoping that the next drunk college kid who needs to whizz down an alley doesn't have to deal with as much bs as this.
If you don't like it ...
Work to convince your legislators to change the law.
+1
I agree, the verdict is not a referendum on the behavior, it's a referendum on the elements of the crime charged.
Why do (presumably) men
Why do (presumably) men always defend pissing in public?? A wall is not a toilet - and nobody would be defending anyone who pulls down their pants and plants a steaming load onto the sidewalk - so why is it okay for drunk boys to pee everywhere?
for the pedants: no obviously I am not saying peeing in public is a sex crime but people constantly bring up peeing on buildings as some kind of wacky boys will be boys hijinks instead of some disgusting lack of basic 4 year old civility in these convos and I just do not get it.
I'd be fine with a
I'd be fine with a noncriminal fine of about $50 for voiding where prohibited. It's the sex offender status and criminal record that offend me.
Here is the bottom line on this....
Guys like this fall into two categories (WARNING NSFW TALK):
1. The pervert wants to stroke their penis and have people see them stroking it so the pervert can see what their reaction is (your standard flasher who does not care about getting off that moment but wants to see reactions)
2. The pervert wants to rub one out and ejaculate without anyone knowing that they are getting off. This pervert is often so bent on getting off, that they are careless and disregard the consequence of getting caught. (Their goal is to have an orgasm while watching something they want to watch)
This case sounds like #2. Pervert #1 is a felon all the way and his intent is to commit a felony. Pervert #2 doesn't want to get caught, but his blatant disregard makes it borderline as to where some innocent victim might actually see him.
Bottom line, this guy is a pervert and needs help.
Police report wrtiting 101
Ridiculous decision by our far-left SJC. Of course a man masturbating at a train station is guilty of lewd and lascivious conduct. There is no such thing as a routine police call but this is why police reports have become routine, boilerplate and template, containing the same language. "Shock and alarm" will be taught at the academy along with "unable to maintain lane, failure to keep right, bloodshot, glassy eyes, unsteady on feet, strong odor of alcoholic beverage. etc." Hopefully this suspect doesn't hurt anyone before his next conviction and officers will learn to include "shock and alarm" in their reports.
The fact that officers need to include
"shock and alarm" in a report about a guy openly masturbating in a T station is, to put it mildly, totally IDIOTIC. And shame on the SJC for once again taking the Greg Brady approach ("not your exact words") to interpreting the laws of this state.