Criminal Law. The term “lewd act” refers to an act of sexual nature that the actor knows will likely be observed by another who will be offended or disturbed by it.
Commonwealth v. Heinbaugh, 467 Pa. 1 (1976)
Open lewdness was an indictable offense at common law. It was defined as an act of gross and open indecency which tends to corrupt the morals of the community. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840, 849 (1948); Commonwealth v. Sharpless, 2 Serg. & R. 91, 100 (1815); IV Blackstone Commentaries 64 n. 38 (W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4 (1948). While the language of the challenged Pennsylvania lewdness statute differs in some respects from this common law definition, there is no difference in meaning. The statute in question is a verbatim adoption of the lewdness provision of the Model Penal Code, ALI, Model Penal Code, Proposed Official Draft 251.1. The comment to that section makes it clear that the drafters intended to codify the pre-existing common law:
“Lewd or indecent behavior is punishable in all jurisdictions. The prohibited conduct amounts to gross flouting of community standards in respect to sexuality or nudity in public.” ALI, Model Penal Code, Tentative Draft No. 13 §§ 213.4 & 251.1, Comment at p. 81.
Commonwealth v. Kelley, 25 Mass. App. Ct. 180 (1987)
Acknowledging “great difficulty in attempting to define specifically the conduct proscribed by the `lewd, wanton and lascivious persons’ provision,” the Supreme Judicial Court in Commonwealth v Sefranka, 382 Mass. at 115-116 and 117-118, adopted a definition which, insofar as relevant here, prohibits “the commission of conduct in a public place, . . . when the conduct committed . . . involves the touching of the genitals . . . for purposes of sexual arousal, gratification, or offense, by a person who knows or should know of the presence of a person or persons who may be offended by the conduct” (emphasis supplied).
This definition appears to require both: 1) that the conduct be in a public place; and 2) that it be by a person who knows or should know of the presence of another person or persons who may be offended. Earlier, in Commonwealth v. Templeman, 376 Mass. 533, 537(1978), the court had held that § 53 was not applicable “to private conduct between two people in the home in which they both lived.” The Templeman decision limited the “`lewd, wanton and lascivious persons’ provision . . . to `public’ conduct in the same sense as the `disorderly persons’ provision.” Ibid. That definition is strict. With respect to a “disorderly person” charge, the court has “insisted on a purpose to cause `public’ inconvenience, annoyance or alarm, or on reckless creation of a risk thereof, and ha[s] defined `public’ to mean `affecting or likely to affect persons in a place to which the public or a substantial group has access.’”Ibid., quoting from Commonwealth v. A Juvenile, 368 Mass. 580, 585-586 (1975).