It’s possible the DA recognizes that, despite his victory at the SJC, the lewdness prosecution is eventually doomed. If Ora is convicted and her lawyer, Daniel Beck, was to take the case to federal court, the charges would likely not withstand a First Amendment challenge. Plus, as Beck told Singleton in a recently filed brief, the lewdness complaint never should have been issued against Ora in the first place, since those charges in Massachusetts have been successfully prosecuted only when the cases involved “overtly sexual behavior in public”; a defendant who “exposed himself to a targeted person . . . , usually minors (so-called flashing)”; or a defendant who “exposed himself in the attempt or commission of a sexual assault.”

According to Beck, the evidence the clerk heard when issuing the complaint against Ora wasn’t consistent with any of those situations. And if the SJC requires “alarm or shock,” what Ora did doesn’t stack up, either. Beck is rightly asking the judge to throw out the case (again).

This may be why the DA has supplemented the charges against Ora by seeking a new complaint for “indecent exposure,” on the assumption that somehow the proof needed for that charge would be lower than for “open and gross lewdness.” This application, too, will be heard on Friday. But since Ora’s conduct is likely constitutionally protected, it doesn’t matter whether it’s described as lewdness or indecency. The Middlesex County DA is grasping at straws, playing with words, and wasting taxpayer money.

Harvey Silverglate is a criminal-defense and civil-liberties lawyer and writer. James F. Tierney is an incoming law student at the University of Chicago and was Silverglate's research assistant this year.

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