This year to date, MBTA Transit Police have made 35 arrests for open and gross lewdness on the T and buses, marking an 84 percent increase in such arrests since 2009. However, this statistic may be attributable to an increase in such incidents being reported. Around this time last year, there were 28 reports as compared with the 48 so far this year. The latest arrest involved Donnie McLean, a 48-year-old Level 3 sex offender, who allegedly exposed himself to a female on a Route 28 bus. McLean had previously been convicted of open and gross lewdness on two occasions.
In addition to the arrests for open and gross lewdness, MBTA police have made more than 20 arrests this year for indecent assault and battery. Most recently, in November, two men were arrested in connection with separate incidents of alleged MBTA groping.
Open and gross lewdness and lascivious behavior involves the intentional exposure of the buttocks, genitals or female breasts to another person or to multiple persons. If the exposure is accidental, then one cannot be convicted of this offense. Especially given certain fashion trends, such as males wearing saggy jeans or females wearing strapless tops and dresses, it is often possible that such exposure is nothing more than an embarrassing accident.
Indecent assault and battery also requires an intent element. To be convicted of indecent assault and battery, there must have been some intentional touching of a private area without excuse or justification. The T and MBTA buses are almost always extremely crowded, and there is usually little to no personal space. It can be very difficult to avoid accidentally touching or brushing up against fellow passengers, and again, a potentially strong defense to an MBTA indecent assault and battery charge would be that the touching was not intentional.
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