Lewd and Lascivious Conduct

Reporter’s Notes

Lewd and Lascivious Conduct. The instruction for lewd and lascivious conduct, under 13 V.S.A. § 2601, contains an element of general intent. The instruction does not elaborate upon intent, because there is no specific intent element (i.e. that the defendant intended to achieve a specific harm or result), and it is not clear whether it is necessary to give any instruction on intent. The judicial guidance concerning this statute derives from State v. Millard, 18 Vt. 574 (1846), where the Court explained: “The common sense of community, as well as the sense of decency, propriety, and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” Id. at 577. The Court also concluded that the conduct in question there was sufficient to support the conviction, as follows (at 577-78):

            That the conduct of the respondent, in this case, was lewd and lascivious is beyond question. A public exposure of himself to a female, in the manner this respondent did, with a view to excite unchaste feelings and passions in her and to induce her to yield to his wishes, is lewd, and is gross lewdness, calculated to outrage the feelings of the person, to whom he thus exposed himself, and to show, that all sense of decency, chastity, or propriety of conduct, was wanting in him, and that he was a proper subject for the animadversion of criminal jurisprudence.

More recently, the Court has held that § 2601 does not contain an element of specific intent on the part of the defendant that he or she be seen committing the act. State v. Maunsell, 170 Vt. 543, 544 (1999). The Court explained that, if the Legislature had intended to include a specific intent to achieve a precise harm or result, it would have done so in § 2601, as it did in § 2602. Id. at 544 (citing State v. Grenier, 158 Vt. 153, 156 (1992)); see also State v. Gabert, 152 Vt. 83, 85 (1989) (court need not discuss specific intent as part of Rule 11 colloquy when accepting guilty plea for lewd and lascivious conduct). In an unpublished opinion, the Supreme Court held that specific intent is not an element of § 2601. See State v. Gall, No. 2001-512 (unp. decision, December 2002).

The model instruction, CR27-031, includes an element that the defendant intentionally engaged in the conduct alleged in the charge. This is designed as a general intent instruction; it has been modified from an earlier version to make clear that there is no essential element of specific intent. This is one of the few instructions from this project containing a general intent instruction. See notes under Chapter 6.

The instructions as drafted address the difference between lewd and lascivious conduct, under 13 V.S.A. § 2601, and lewdness under 13 V.S.A. § 2601a. The conduct under § 2601 must be lewd and lascivious, whereas the conduct under § 2601a need only be lewd. For an instruction on lewdness under § 2601a, see CR27-041, which includes lewdness as a lesser included offense to lewd and lascivious conduct under § 2601.

For further discussion and examples of what might constitute lewd and lascivious behavior under 13 V.S.A. § 2601, see State v. Discola, 2018 VT 7, ¶¶ 19–22 (evidence sufficient to support finding that defendant’s unwanted grabbing of victim’s buttocks was criminally offensive under community standards of decency and morality, as required to support conviction for lewd and lascivious conduct).

Transition to Lesser Included Lewdness.  In In re K.A., 2016 VT 52, ¶ 21, 202 Vt. 86, the Supreme Court declared that lewdness not “relating to prostitution” was not an operative offense under 13 V.S.A. § 2632(a)(8). However, the Legislature amended the statute in 2017 to establish lewdness not related to prostitution as an offense. See 13 V.S.A. § 2601a.

Note that CR27-041 is presented as a lesser-included offense of lewd and lascivious conduct.  In the event that only the lesser charge is presented to the jury, CR27-046 would apply. Note also that lewdness—as formerly construed under the prohibited acts statute, 13 V.S.A. § 2632(a)(8)—is not a lesser included offense of aggravated sexual assault, see State v. Memoli, 2011 VT 15, ¶¶ 32–34, 189 Vt. 237, nor is it a lesser included of lewd and lascivious conduct with a child. See State v. Beaudoin, 2008 VT 133, ¶¶30–39, 185 Vt. 164.

It remains an open question whether certain conduct that is not sexually explicit in nature, such as public urination, could be considered lewd. In State v. Penn, 2003 VT 110, ¶ 12, 176 Vt. 565, the Supreme Court quoted approvingly a jury instruction that lewd and lascivious behavior means “behavior that is sexual in nature, lustful, or indecent, that which offends the common social sense of the community, as well as its sense of decency and morality.” Yet, the Court has not directly addressed whether the statute applies to indecent but nonsexual conduct. The reported decisions have involved overtly sexual behavior, generally in the context of the lewd and lascivious conduct statute. See, e.g., Penn, 2003 VT 110, ¶¶ 9–12 (evidence sufficient for two separate lewd and lascivious conduct convictions where defendant licked victim’s toes and tried to get inside her shorts, and proceeded to unbutton and unzip another victim’s pants in full view of that victim’s ten-year-old daughter); State v. Purvis, 146 Vt. 441 (1985) (statute prohibiting lewd and lascivious conduct not void for vagueness as applied to defendant charged with exposing himself to three young girls after knocking on his window to attract their attention before he revealed himself; defendant was not prosecuted for mere nudity because he drew attention to himself before exposure, indicating criminal intent).

The defendant has a right to choose between a “hard” or “soft” transition.  The hard transition requires a verdict on the highest offense before the jury considers any lesser included offenses.  The soft transition allows jurors to consider the lesser offense if they are unable to agree upon a verdict on the higher offense “after all reasonable efforts to reach a unanimous verdict.”  State v. Duff, 150 Vt. 329, 336-37 (1988).  The committee has generally used “soft” transitions, because most defendants prefer “soft” transitions over “hard.”  The following is an example of a “hard” transition, in case the defendant prefers that approach:

You must first consider the charge of lewd and lascivious conduct.  If the State has proven each of the essential elements of that charge, then you must find (Def)_______________ guilty of that charge, and you will be done with your deliberations.  If you decide that the State has not proven each and every one of the essential elements of lewd and lascivious conduct, then you must find (Def)_______________ not guilty of that charge, and then you must consider whether [he] [she] is guilty of the offense of lewdness.

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