The Kickham Comment - Boston Criminal Attorney Blog

More than one person over the course of my career has asked me – usually with disbelief written all over their faces – how I can defend people accused of rape and other sexual crimes. My answer is always the same: Because the person who is accused may not be legally guilty of the particular Massachusetts sex crime they happen to be charged with.

While that usually gets the person to think twice, what’s disturbing is the attitude – more specifically, the pre-conceived notions – that most people start off with on this subject. This attitude almost translates to: “Anyone who is accused of rape or other sex crime, must be guilty.” The retort that usually silences them for good is this: “Really? Then I suppose that if you were accused of a sex crime, by your own reasoning, you’d have to be guilty, wouldn’t you?” A blank stare is the universal response to that comeback. But beyond this attitudinal presumption of guilt that people harbor about rape and other sex offenses, is something just as, or even more, pernicious: Twisted “new” definitions of what rape really is – fueled largely by militant feminists and liberal ‘activists’ on college campuses across the United States. This is all fueled by political correctness – that toxic idea that has said for too long now that one can’t say anything that could even remotely offend anyone, at any time, in any place, for any reason.

Rape has always been defined legally as: “The unlawful carnal knowledge of a woman by a man forcibly and against her will.” “Unlawful”, “Force” and “against her will” have always been central to this definition. (By the way: While the feminine pronoun has always been used in this definition, it should go without saying that a man can be raped, also.) Rape has always been viewed as a violent crime, savage in its commission, and always defined by a lack of consent. However, that time-honored legal definition is apparently not good enough for many “activists” in universities in this country. Exhibit “A” on how college campuses across America are twisting the time-tested legal definitions of rape? A recent study by Reason Magazine revealed that more than half of MIT students believe that rape and sexual assault “can happen unintentionally, especially if alcohol is involved.”

In my previous post on this subject, I wrote of how, recently, my wife and I, as well as several other people, were exposed (pardon the pun) to a man on Cape Cod who was wearing a “swim suit” that was, in the expressed opinion of several observers, extremely offensive and obscene. I mentioned how odd the timing of this incident was, because the Massachusetts Appeals Court had delivered a ruling earlier that very week, on the subject of what is and isn’t legal, when it comes to very revealing clothing.

The defendant in that case, Commonwealth vs. Coppinger, was charged with the Massachusetts sex offense of Open and Gross Lewdness. He was tried before a jury, and was found guilty of that charge. He appealed his conviction, his lawyer arguing that the judge who presided at his earlier trial erred in denying the defendant’s Motion to Dismiss. That Motion had claimed that the statute prohibiting open and gross lewdness is “unconstitutionally vague,” and thus unenforceable. In addition, the defendant also argued on appeal that the trial judge erred again when instructing the jury on an accepted definition of the word “exposure” – because he claimed he was not “exposing” himself. Why? Here’s where things get interesting: Because, the defendant claimed, the translucent (see-through) “compression shorts” he was wearing, constituted “clothing,” and thus he could not have been legally “exposing” himself.

Interesting argument, but the Appeals Court denied both claims. First, on the issue of whether the statute was vague, the court outlined what elements of this Massachusetts sex offense the Commonwealth must prove beyond a reasonable doubt, which are: (1) That the defendant “exposed his or her . . . genitals, buttocks, or female breasts to one or more persons”; (2) That the defendant did so “intentionally”; (3) That the defendant did so “openly,” that is, he or she intended public exposure, or recklessly disregarded a substantial risk of public exposure, to individuals who might be offended by such conduct; (4) That the defendant’s act was committed in such a manner as to produce alarm or shock in anyone witnessing it; and (5) That one or more persons were in fact alarmed or shocked by the defendant’s act of exposing himself or herself.”

The other day, my wife and I were on Cape Cod. Suddenly, she directed my attention away from the water I was gazing at. “Look over there – Can you believe that?” she asked, incredulously. What I saw was a man, who appeared to be in his mid-to-late 50’s or perhaps early 60’s, “wearing” – and I use that term loosely – what I am sure he would have claimed was a “bathing suit.” What it actually consisted of, was two cords around either hip, leading to a small swatch of cloth that acted as a pouch, or pocket, for the man’s genitals.

To give you an idea of how much material this “pocket” consisted of, think of this comparison: If you made a fist, the material this man was wearing would not be enough to cover the top of an average person’s fist. In the rear (pardon the pun) there was no material whatsoever; his buttocks were completely exposed. I myself was quite offended (and I’m no prude.) Not just ‘somewhat’ offended, but very much. Other people in the area that we observed displaying uncomfortable facial expressions were also offended, and I know this for a fact because I quietly asked them if they were. Even children and teenagers were staring in stunned amazement. The man was not oblivious to the resulting attention, and he seemed to enjoy it, at one point even getting off his lounger to engaging in “stretching.”

OK, quick: Was this man’s appearance a crime in Massachusetts? Or just extremely poor taste? As a Boston sex offense lawyer, I can tell you that I’ve seen many of these types of cases. But first, exactly what Massachusetts sex crime could a person such as the above man, be charged with? The appropriate criminal charge for someone appearing in a state of ‘dress’ that violates state law is called “Open and Gross Lewdness,” which is a violation of M. G. L. c. 272, § 16. That statute makes it a crime to “intentional(ly) expose .. genitalia, buttocks, or female breasts to one or more persons.” This charge is also known as “Lewd and Lascivious Conduct.” Exposing one’s genitals, buttocks or breasts is not the only way that a person could be charged with this crime; it is just one. Public urination – sadly common at public gatherings such as sporting events – also triggers this crime.