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House painter who masturbated inside client's house instead of painting gets off because centuries-old law doesn't account for surveillance video

The Massachusetts Appeals Court today dismissed a charge of open and gross lewdness against a painter who disrobed and strolled through a client's home masturbating instead of painting, because current state law requires the physical presence of somebody to be "alarmed or shocked" and the homeowner only got alarmed or shocked later while reviewing video from her security cameras.

The court rejected an argument by the Bristol County District Attorney's office that a theory of "virtual presence" satisfied the law's requirement that a lewd act be performed "openly" to count as criminal behavior.

The court said that a court accepting the DA's "virtual" argument might lead to the criminalization of all sorts of videoed lewd acts, many of which are now considered perfectly legal, but added it might be time for the legislature to update the law to include certain very specific acts - which would be similar to the way the legislature raced to make subway upskirting illegal after the Supreme Judicial Court concluded a similarly outdated law only applied to peeping Toms looking into private bathrooms and bedrooms, not to pervs using cameras pointed up from Green Line steps.

The current "open and gross lewdness" law has not been updated in more than 200 years, the court noted:

Accepting the Commonwealth's expansive theory of "virtual presence" under the present facts could create criminal liability whereby any recorded lewd act could rise to the level of a violation of the statute. ...

[G]iven the amount of real time, consensual sexual conduct lawfully engaged in online, treating video interaction as "virtual presence" sufficient to demonstrate openness might criminalize a broad range of activity beyond the scope contemplated by G. L. c. 272, § 16.

According to the court's summary of the case, a woman hired a painter she knew from church to update her home's interior:

The defendant met with the victim at her house two days prior to the incident to discuss the quote for the paint job. During their conversation, the defendant "pointed to one of [the] cameras inside the house and asked what those were." The victim replied that she had installed cameras in the house "after her husband had passed away and [while] her mother-in-law [was] staying at the residence." She further explained to the defendant that she used the cameras to "keep an[] eye on people who are coming in and out of the house for her [mother-in-law] when [the victim] was at work." On February 9, 2021, the defendant arrived at the victim's residence, at which time the video cameras captured the following incident.

The defendant walked around the house for approximately nine minutes, during which time he "[went] around the rooms checking the ceiling corners," "look[ed] into Camera 3," moved the ladder twice, "place[d] a drop cloth over the ladder," and "c[ame] back into the room without his shoes on." Next, the defendant entered the bathroom. Less than one minute later, he "c[ame] out of the bathroom with no pants on and [was] masturbating." He entered the room "with a cloth in his left hand and his right hand on his penis and briefly look[ed] at the camera." The defendant walked into various rooms throughout the house including the kitchen while masturbating, and looked at or "into" the camera several times. Approximately two minutes after leaving the bathroom, the defendant "ejaculate[d] into the rag he [was] holding . . .[,] walk[ed] back into the bathroom[,]" and then exited the bathroom with his pants on. He then removed the drop cloth from the ladder, moved the ladder back near the couch, cleaned the floor in the kitchen, and left the residence. "After [the defendant] finished masturbating and was grabbing his belongings he did not look at the cameras once."

On reviewing her video, the woman contacted the New Bedford police department, where a detective, after reviewing the video himself, brought the painter in for questioning, during which he confessed, because "I thought I was by myself." He was then charged with open and gross lewdness.

A district-court judge agreed with the man to dismiss the case, because his activity, while gross, was not "open" under state law, since there was nobody physically present at the time to be "shocked and alarmed" as the law requires

Prosecutors appealed, but the appeals court sided with the judge's interpretation:

The Commonwealth argues that the criminal complaint application established probable cause because "the defendant, after being advised of the presence of security cameras in the interior of the home he had been hired to paint, masturbated while looking into those cameras as he moved from room to room." Thus, the Commonwealth contends, the conduct satisfied the openness element at the probable cause stage.

Viewed in the light most favorable to the Commonwealth, the information in the criminal complaint application and police reports may indeed have been adequate to show that the defendant intended public exposure or recklessly disregarded a substantial risk of public exposure. See Quinn, 439 Mass. at 501. However, that does not end our analysis. To be "open" under G. L. c. 272, § 16, the conduct "must occur in the presence of another person who can be alarmed or shocked." Quinn, supra at 496 n.9. The "presence" requirement is well established in our case law. See Commonwealth v. Wardell, 128 Mass. 52, 53-54 (1880) (explaining under prior version of G. L. c. 272, § 16, that defendant's lewd conduct was "open" where act was intended to be seen by "persons present" and "was observed by at least one of those present").

The court continued that because the requirement for somebody to be physically present for an act by another to be considered "open" has so repeatedly affirmed by courts through the centuries that it could not broaden the law's interpretation to include the more modern concept of "virtual presence," that the legislature and the governor would have to do so.

Where the criminal complaint application contained no information from which one could reasonably infer that the victim was present within the meaning of G. L. c. 272, § 16, the conduct was not "open" as a matter of law. Therefore, the order dismissing the criminal complaint must be affirmed.

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Comments

Oh, a rash of incidents for "difficult" clients is coming.
Repeatedly.

Of course it is terrible for word-of-mouth marketing.
Unless there is a specialty market that pays more for such houspainting services.

Putting the question of lewdness aside, were contracts signed between the woman and the man? Since no work was apparently done - well, for which she paid - might she continue with a civil suit or two just to make his life miserable?

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24

If he wasn't paid, the only suit on contract would be for specific performance - making him finish the job for the quoted price.

Intentional infliction of emotional distress is a stretch and the guy probably doesn't have any money.

Persecuting people for incidents where nobody was seriously hurt is a bad idea. Maybe even when people are hurt.

You want to make someone miserable? Consider that they and friends and family can do the same to you.

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13

No one is harmed by an action like this. Fire the guy and leave a bad review.

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The homeowner was harmed when viewing the video. It’s the “open” part that got him off (no pun). He did not know he was being videotaped, had a legitimate assumption of privacy and no harm was intended as it would have been had he been intentionally exposing himself in public.

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According to the summary above, the painter knew about the cameras. He probably should have assumed the owner would check the video, if only to check on his work.

That said, I agree the homeowner was harmed, and I wouldn't be surprised (though obviously I don't know for sure) if the painter did it on purpose, knowing the homeowner would likely be reviewing the video.

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52

I misread the part where the homeowner pointed out the cameras to the workman. In this case he absolutely knew she would see him and did it to intimidate her.

The court was wise to point out that the laws concerning this and other things like peeping Toms need to be updated to cover upskirting and video cams. Had these laws been modernized, I think the court would have found him guilty.

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The homeowner was harmed by having her sense of security in her own home threatened by a perverse power game.

I'm betting the guy knew full well that his kink was being reported - the implied threat is part of the thrill for exhibitionists.

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It’s not weak to feel violated when someone you trusted to do a professional job for you instead does something sexually intimate without your consent in your home.

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23

any masturbatory emissions, where the sperm is clearly not seeking an egg, could be termed reckless abandonment.

Professor Callahan : You've just won your case

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18

"Isn't is fascinating to think that probably the only laugh that man will ever get in his life is by stripping off his clothes and showing his shortcomings?"

David Niven 1974 Oscar Awards.

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or are you happy to see me

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10

.

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19

made the video, taken inside her own home, public, would that be a crime against the guy who wouldn't be in that situation if he didn't do what he did in someone else's home?

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Sounds kinda like revenge porn.

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that means that both parties to a telephone or video conversation have to consent to have it recorded.

Raises the question of whether he knew and consented. Would not be a good idea.

The All-Party Consent Law in MA only applies to audio recordings, or video where audio is also captured. The law does not apply to MOS/silent video.

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Sounds like he is an artist not a house painter

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16

again.

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But maybe there are other options?

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11

In case anyone missed this pun made the first few times

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10

porn star, peter north, was known as `the painter`.

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The law seems clear in this case - 'open and gross lewdness' does, in fact, require the 'open' part.

Sometimes the law can't account for every case. And in this case, the woman needs to know a guy who knows a guy who can take care of this. At a later date, when she can't be connected to the resulting ... payback.

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Multiple comments on this post and not one has included a Jackson Pollock reference yet.

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Farrah Fawcett's painting style?

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Okay, so they weren't brush strokes . . .

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“…. Gets off”
LMAO!

because it sounds like he was hoping to be seen.

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Yes, after reading the article above this is my take too. He wanted to be seen.. or at least if not that, he's a nutbag. (or both)

I mean if you ask about the cameras and who has access. When he starts the job, his first thing is to look and and check for the cameras. Then does not start work, but rather.. go into the bathroom, get naked, and come out stroking his paint stick. THEN walks from room to room doing that and look at each camera. And of course, after he pops his paint can, he gathers up his things and does not look at the camera, then leaves.

Clearly he wanted to be seen by this woman, and leaning toward that he had no intentions of painting her place at all. Or at least started to do his fetish and it musta clicked that he shouldn't be doing that cuz of cameras. Then just bolted when he was done squeezing his roller, not really starting the job in hopes of just ghosting her (and she would just move on and not look at the cameras).

I am almost willing to think that this isn't his first time at the spray paint rodeo and this could have happened elsewhere, sans cameras. Who's to say he isn't squeezing his paint roller at all the jobs he done? There were just no cameras, and no one around to see. Again the excitement for many exobishionists is 'being caught'.. so no cameras but instead having the fear of someone walking is still 'exciting' for them.

I am sure if someone did some digging and talked to a few former clients, they might find out more. Most may not know, but some may have figured it out but had no real proof or if they did, just decided not to push it further.

I'd also love to read reviews and where she found this guy at. Cuz from my experience hiring painters, there are three types:

1. Professional Painters who enjoy painting (and often are artists themselves)
2. Trade Painters (usually apart of a construction team, and were taught on the job how to paint, and do not moonlight)
3. Any joe blow with a ladder, overalls, drop cloth, brushes, a van/truck, and has business cards with "Joe Blow, Professional Painter" on there.

Its the #3 you gotta watch out for. There are so many of them b/c its so easy to do and become one. I know many painters who started out just by putting up cards on a supermarket community board.

Makes me wonder if this guy was a #3 and doing this as a guise to be pervy inside people's homes while making a few bucks.

Really makes you wonder whats going in your home when contractors and such are left unattended.

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checking the state of the painter's radio before agreeing to hire them.

This was the icing on the cake.