{"id":791,"date":"2012-08-09T17:50:24","date_gmt":"2012-08-09T17:50:24","guid":{"rendered":"http:\/\/vtjuryinstructions.org\/?page_id=791"},"modified":"2021-03-05T19:24:18","modified_gmt":"2021-03-05T19:24:18","slug":"lewd-and-lascivious-conduct","status":"publish","type":"page","link":"https:\/\/vtjuryinstructions.org\/?page_id=791","title":{"rendered":"Lewd and Lascivious Conduct"},"content":{"rendered":"<ul style=\"text-align: justify;\">\n<li>CR27-031.\u00a0 <a href=\"http:\/\/www.vtjuryinstructions.org\/criminal\/MS27-031.htm\" target=\"_blank\" rel=\"noopener\">Lewd and Lascivious Conduct<\/a>, 13 V.S.A. \u00a7 2601 (03\/03\/06)<\/li>\n<li>CR27-041.\u00a0 <a href=\"http:\/\/www.vtjuryinstructions.org\/criminal\/MS27-041.htm\" target=\"_blank\" rel=\"noopener\">Transition to Lesser Included Lewdness under 13 V.S.A. \u00a7 2601a<\/a> (01\/18\/19)<\/li>\n<li>CR27-046.\u00a0 <a href=\"http:\/\/www.vtjuryinstructions.org\/criminal\/MS27-046.htm\">Lewdness<\/a>, 13 V.S.A. \u00a7 2601a (01\/18\/19)<\/li>\n<\/ul>\n<p style=\"text-align: center;\"><em>Reporter&#8217;s Notes<\/em><\/p>\n<p style=\"text-align: justify;\"><strong>Lewd and Lascivious Conduct. <\/strong>The instruction for lewd and lascivious conduct, under 13 V.S.A. \u00a7 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 <span style=\"text-decoration: underline;\">State v. Millard<\/span>, 18 Vt. 574 (1846), where the Court explained: \u201cThe 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.\u201d <span style=\"text-decoration: underline;\">Id<\/span>. at 577. The Court also concluded that the conduct in question there was sufficient to support the conviction, as follows (at 577-78):<\/p>\n<p style=\"padding-left: 30px; text-align: justify;\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.<\/p>\n<p style=\"text-align: justify;\">More recently, the Court has held that \u00a7 2601 does not contain an element of specific intent on the part of the defendant that he or she be seen committing the act. <span style=\"text-decoration: underline;\">State v. Maunsell<\/span>, 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 \u00a7 2601, as it did in \u00a7 2602. <span style=\"text-decoration: underline;\">Id<\/span>. at 544 (citing <span style=\"text-decoration: underline;\">State v. Grenier<\/span>, 158 Vt. 153, 156 (1992)); <em>see also<\/em> <span style=\"text-decoration: underline;\">State v. Gabert<\/span>, 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 \u00a7 2601. <em>See<\/em> <span style=\"text-decoration: underline;\">State v. Gall<\/span>, No. 2001-512 (unp. decision, December 2002).<\/p>\n<p style=\"text-align: justify;\">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.<\/p>\n<p style=\"text-align: justify;\">The instructions as drafted address the difference between lewd and lascivious conduct, under 13 V.S.A. \u00a7 2601, and lewdness under 13 V.S.A. \u00a7 2601a. The conduct under \u00a7\u00a02601 must be lewd and lascivious, whereas the conduct under \u00a7 2601a need only be lewd. For an instruction on lewdness under \u00a7 2601a, see CR27-041, which includes lewdness as a lesser included offense to lewd and lascivious conduct under \u00a7 2601.<\/p>\n<p style=\"text-align: justify;\">For further discussion and examples of what might constitute lewd and lascivious behavior under 13 V.S.A. \u00a7 2601, see <span style=\"text-decoration: underline;\">State v. Discola<\/span>, 2018 VT 7, \u00b6\u00b6 19\u201322 (evidence sufficient to support finding that defendant\u2019s unwanted grabbing of victim\u2019s buttocks was criminally offensive under community standards of decency and morality, as required to support conviction for lewd and lascivious conduct).<\/p>\n<p style=\"text-align: justify;\"><strong>Transition to Lesser Included Lewdness.\u00a0 <\/strong>In <span style=\"text-decoration: underline;\">In re K.A.<\/span>, 2016 VT 52, \u00b6 21, 202 Vt. 86, the Supreme Court declared that lewdness not \u201crelating to prostitution\u201d was not an operative offense under 13 V.S.A. \u00a7 2632(a)(8). However, the Legislature amended the statute in 2017 to establish lewdness not related to prostitution as an offense. <em>See<\/em> 13 V.S.A. \u00a7\u00a02601a.<\/p>\n<p style=\"text-align: justify;\">Note that CR27-041 is presented as a lesser-included offense of lewd and lascivious conduct.\u00a0 In the event that only the lesser charge is presented to the jury, CR27-046 would apply. Note also that lewdness\u2014as formerly construed under the prohibited acts statute, 13 V.S.A. \u00a7\u00a02632(a)(8)\u2014is not a lesser included offense of aggravated sexual assault, <em>see<\/em> <span style=\"text-decoration: underline;\">State v. Memoli<\/span>, 2011 VT 15, \u00b6\u00b6 32\u201334, 189 Vt. 237, nor is it a lesser included of lewd and lascivious conduct with a child. <em>See<\/em> <span style=\"text-decoration: underline;\">State v. Beaudoin<\/span>, 2008 VT 133, \u00b6\u00b630\u201339, 185 Vt. 164.<\/p>\n<p style=\"text-align: justify;\">It remains an open question whether certain conduct that is not sexually explicit in nature, such as public urination, could be considered lewd. In <span style=\"text-decoration: underline;\">State v. Penn<\/span>, 2003 VT 110, \u00b6 12, 176 Vt. 565, the Supreme Court quoted approvingly a jury instruction that lewd and lascivious behavior means \u201cbehavior 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.\u201d 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. <em>See<\/em>, <em>e.g.<\/em>, <span style=\"text-decoration: underline;\">Penn<\/span>, 2003 VT 110, \u00b6\u00b6 9\u201312 (evidence sufficient for two separate lewd and lascivious conduct convictions where defendant licked victim\u2019s toes and tried to get inside her shorts, and proceeded to unbutton and unzip another victim\u2019s pants in full view of that victim\u2019s ten-year-old daughter); <span style=\"text-decoration: underline;\">State v. Purvis<\/span>, 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).<\/p>\n<p style=\"text-align: justify;\">Defendants have a right to choose a \u201chard\u201d or a \u201csoft\u201d transition between offenses. <u>State v. Powell<\/u>, 158 Vt. 280, 284 (1992). The hard transition requires a verdict on the highest offense before the jury considers the lesser included offenses. The soft transition allows jurors to consider the lesser offenses if they are unable to agree upon a verdict on the higher offense \u201cafter all reasonable efforts to reach a unanimous verdict.\u201d <u>State v. Duff<\/u>, 150 Vt. 329, 336-37 (1988). Where a defendant \u201cdoes not choose either transition instruction, it is within the discretion of the trial court to decide which instruction to provide.\u201d <u>State v. Rolls<\/u>, 2020 VT 18, \u00b6 9 (trial court did not err in providing both hard and soft transition instructions, rather than one or the other, in the absence of defendant\u2019s request). The committee\u2019s instructions generally contain soft transitions, because most defendants prefer them. However, for defendants who prefer a hard transition, the committee offers the following example:<\/p>\n<p style=\"text-align: justify; padding-left: 30px;\">You must first consider the charge of lewd and lascivious conduct.\u00a0 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.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>CR27-031.\u00a0 Lewd and Lascivious Conduct, 13 V.S.A. \u00a7 2601 (03\/03\/06) CR27-041.\u00a0 Transition to Lesser Included Lewdness under 13 V.S.A. \u00a7 2601a (01\/18\/19) CR27-046.\u00a0 Lewdness, 13 V.S.A. \u00a7 2601a (01\/18\/19) Reporter&#8217;s Notes Lewd and Lascivious Conduct. 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