I’m a little confused over the traditional, common law elements of this offense.
This seems to indicate that the only element of the offense is being out at night, and the fact that you had a legitimate reason to be out at night such as working a night job or attending a nighttime cultural event is no defense. On the other hand, this seems to indicate that it is an essential element of the offense that the defendant is out at night with intent to solicit an unlawful sexual act, as opposed to someone who is out at night for another reason, such as working a night shift at a legitimate job, traveling, or something like that. This is confusing and seems to indicate that there may be a habitual element in the offense, that is, simply being out at night isn’t enough to make you guilty, you have to habitually be out at night as a part of your lifestyle.
I agree with the honourable member for Cronulla that the offense probably originated as a form of curfew violation in pre-industrial England. My guess would be that somewhere along the line, it accrued the more specific meaning relating to solicitation of sex. It may be that even in the oldest times, the law was primarily used against prostitutes, while other types of night-walkers, such as footpads and cutpurses, got reeled in under other provisions of law.
The NSW link refers to the common law crime. The Massachusetts link refers to a statutory crime, which while prima facie based on the common law version, is distinct from it.
Common nightwalker is like most morality legislation which prohibits some ancilliary but import part of the act as opposed to the undesired act itself. Its going to be quite difficult to prove that sex took place for consideration; its going to be much easier to show that the person was arrested soliciting.
Furthermore being out alone at night is a mostly post Industrial Revolution thing for most genteel folks. In earlier times you would only venture out in groups at night and most solitary persons would be there for unsavoury purposes anyway.
It’s a relic of the days when the lawmaking classes thought it desirable to arrest suspicious characters before they could actually do anything harmful. Like loitering, begging, and (to a degree) prostitution, nightwalking was illegal mainly because of the sort of people who did it, and it was enforced mainly against the sort of people that “decent people” didn’t want around.
Contrary to what AK84 said, the crime of “being a common nightwalker” in Massachusetts is not statutory; the punishment is specified in the statute, but the cited definitions are all from cases. There is no definition of “nightwalker” in the criminal law of Mass. (that I can see), but one may infer from its company:
These crimes, and many others, are classified under Chapter 272: “Crimes against Chastity, Morality, Decency and Good Order.”
I’m afraid I must disagree with esteemed counsel AK84. The bolded section appears to be a continuation of a list that begins with common night walkers, continues through persons with offensive acts and keepers of noisy houses, and finishes with indecent exposers. Anyone on the list can be punished by jail or fine, etc. The bolded section doesn’t make much sense as a definition of night walker (how could a night walker be defined as a ‘keeper of a disorderly house’?).
I seem to see the same thing. From my perspective, the statute is saying this:
The following persons shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment:
Common night walkers
Common street walkers, both male and female
Persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex
Lewd, wanton and lascivious persons in speech or behavior
Keepers of noisy and disorderly houses
Persons guilty of indecent exposure
So the law seems to be saying that anyone fitting any of these six conditions shall be punished as prescribed. I’m also guessing that unless “common night walker” is defined by statute elsewhere in state law, then the common law definition as recognized by the state (quite possibly the definition that applied when the 13 colonies gained independence from the UK) would apply.
Is it possible that the common law definition of the offense in England may have changed over time and different overseas/former British jurisdictions ended up with different historical versions?
At common law, the elements of being a common nightwalker are:
[li]being a person[/li][li]whose habit is to be abroad at night [/li][li]for the purpose of committing some crime, or for disturbing the peace, or for the doing some wrongful or wicked act[/li][/ol]
It was made a crime by the statute 5 Edw. III c. 14 (1341) and proscribes the habit of being abroad at night bent upon nuisance or mischief.
Taken from the discussion of the offense in Skinner v. State, 293 A. 2d 828 (Md. Ct Spec App 1972)