56008/874.
Decided by Board April 2, 1946.
Crime involving moral tupitude — Unnatural and lascivious act (sec. 35, ch. 272 of the General Laws of Massachusetts) — Open and gross lewdness and lascivious behavior (sec. 16, ch. 272, General Laws of Massachusetts).
1. The offense of committing an unnatural and lascivious act with a male person in violation of section 35, chapter 272 of the General Laws of Massachusetts, involves moral turpitude.
2. The offense of open and gross lewdness and lascivious behavior in the presence of two males in violation of section 16, chapter 272, General Laws of Massachusetts, involves moral turpitude.
CHARGES:
Warrant: Act of 1917 — Sentenced more than once to 1 year or more for crime committed after entry; Unnatural and lascivious act — Open and gross lewdness, and lascivious behavior.
BEFORE THE BOARD.
Discussion: The respondent is a 30-year-old native and citizen of Canada who has been living in the United States since his admission for permanent residence on July 6, 1926. His last entry occurred at Calais, Maine in the summer of 1932 when he was returning from a brief visit in Canada.
In November 1938, the respondent was arrested in Massachusetts on a complaint charging him with committing an unnatural and lascivious act with a male person in violation of section 35, chapter 272 of the General Laws of Massachusetts. This offense was committed on November 4, 1938. The respondent was convicted and on November 14, 1938 he was sentenced to the house of correction in Billerica, Mass. for a term of 1 year.
In October 1943, the respondent was indicted in Cambridge, Mass., the indictment charging him with open and gross lewdness and lascivious behavior in the presence of two males in violation of section 16, chapter 272, General Laws of Massachusetts. He was convicted of this charge and on October 20, 1943 was sentenced to the house of correction for 18 months.
The issue raised by this record is whether the crimes of which the respondent was convicted involve moral turpitude. Section 35 of chapter 272 reads:
Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.
The unnatural acts proscribed by this statute are neither sodomy nor buggery for they are dealt with in the preceding section of the chapter. The statute apparently comprehends all other unnatural and lascivious acts. And, as can be seen from the reported cases arising under this section, the acts proscribed are of such a nature that the courts have always felt constrained in every instance to omit them from its opinions. We believe that this offense involves moral turpitude.
Section 16 of chapter 272 reads:
A man and woman who, not being married to each other, lewdly and lasciviously associate and cohabit together, or a man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.
As is apparent from the indictment, the respondent was convicted under that divisible portion of the statute which prescribes "open and gross lewdness and lascivious behavior." This offense (which is closely similar to the common law offense of indecent exposure ( Commonwealth v. Broadland, 315 Mass. 20 (1943)) is an "intentional act of lewd exposure." Commonwealth v. Cummings, 273 Mass. 229, 231 (1930). Again, "secret or private lewdness and lascivious behavior" is not within the prohibition of the statute. Commonwealth v. Catlin, 1 Mass. 8, 10 (1804). An evil purpose is an ingredient of the offense; reasonable excuse and necessity are defenses. Commonwealth v. Wardell, 128 Mass. 52 (1880). (See also 93 A.L.R. 996, 1006). A negligent, unintentional, or innocent exposure cannot be punished under this statute. These considerations lead us to hold that the offense involves moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States in the summer of 1932 at Calais, Maine;
(3) That on November 14, 1938 the respondent was sentenced to the house of correction for a term of 1 year following his conviction of committing an unnatural act in violation of section 35, chapter 272 of the General Laws, the offense having been committed on November 4, 1938;
(4) That on October 20, 1943, the respondent was sentenced to the house of correction for 18 months following his conviction of open and gross lewdness and lascivious behavior in violation of section 16 of chapter 272 of the General Laws, the offense having been committed on September 11, 1943.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been sentenced more than once to imprisonment for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: Unnatural act and open and gross lewdness;
(2) That under section 20 of the Immigration Act of 1917, as amended, the respondent is deportable to Canada at Government expense.Other Factors: The respondent is serving an eighteen months' sentence for assault and battery which runs concurrently with the sentence for lewdness discussed above. He has lived in the United States for 18 years. He is single and has no one dependent upon him for support. An order of deportation will be entered.
Order: It is ordered that the alien be deported to Canada at Government expense on the charge stated in the warrant of arrest.
It is further ordered, That execution of the warrant be deferred until the alien is released from imprisonment.