Prohibited Acts

WARNING: The Prohibited Acts instructions and Reporter’s Note have not yet been updated in light of In re K.A., 2016 VT 52, 202 Vt. 86. Courts and attorneys should exercise caution in using the “Lewd Act” instruction (CR27-041) and its accompanying Reporter’s Note. 

Reporter’s Note

Lewd Act.  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, the applicable elements can be derived from this instruction.

Note also that lewdness under 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, while the various subsections of the Prohibited Acts statute appear in their reference to lewdness to apply only to conduct that is sexual in nature, see 13 V.S.A. § 2632, 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).

Engaging in Prostitution.  The model instruction for engaging in prostitution, 13 V.S.A. § 2632(a)(8), focuses on “the offering or receiving of the body for sexual intercourse for hire,” under § 2631.  The committee is not aware of any prosecution under that section for “the offering or receiving of the body for indiscriminate sexual intercourse without hire.”  The committee’s understanding is that the statutory reference to “sexual intercourse” is limited to the insertion of a man’s erect penis into a woman’s vagina.  See The Oxford Dictionary and Thesaurus (American Edition 1996), at 1388.  The scope of the statute is limited to the ordinary meaning of the term, under the rule of lenity.  This interpretation is consistent with the discussion of prostitution in State v. George, 157 Vt. 580 (1991).

Inducing Female to Live Life of Prostitution.  This instruction, like the instruction for “engaging in prostitution,” focuses on sexual intercourse for hire.  A prosecution for inducing a female to engage in indiscriminate sexual intercourse without hire is unlikely.  Compare State v. Corologos, 101 Vt. 300 (1928) (prosecution for indiscriminate sale of ice cream and beverages on Sunday).

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