Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1745 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 83 FILED ON: 1/7/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1745
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jeffrey N. Roy
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to transmitting indecent visual depictions by teens and the unlawful distribution
13	13	of explicit images.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :DATE ADDED:Jeffrey N. Roy10th Norfolk1/4/2023Adam Scanlon14th Bristol1/9/2023Lindsay N. Sabadosa1st Hampshire2/6/2023Christine P. Barber34th Middlesex2/6/2023Christopher M. Markey9th Bristol2/6/2023James K. Hawkins2nd Bristol2/14/2023Walter F. TimiltyNorfolk, Plymouth and Bristol2/14/2023Tackey Chan2nd Norfolk2/14/2023Kay Khan11th Middlesex2/14/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/14/2023Rodney M. Elliott16th Middlesex2/14/2023William C. Galvin6th Norfolk2/15/2023Paul McMurtry11th Norfolk2/22/2023Steven S. Howitt4th Bristol2/22/2023 1 of 7
17	17	HOUSE DOCKET, NO. 83 FILED ON: 1/7/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 1745
19	19	By Representative Roy of Franklin, a petition (accompanied by bill, House, No. 1745) of Jeffrey
20	20	N. Roy and others relative to transmitting indecent visual depictions by teens and the unlawful
21	21	distribution of explicit images. The Judiciary.
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act relative to transmitting indecent visual depictions by teens and the unlawful distribution
28	28	of explicit images.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Chapter 12 of the General Laws is hereby amended by inserting after
32	32	2section 35 the following section:-
33	33	3 Section 36. The attorney general, in consultation with the department of elementary and
34	34	4secondary education, shall develop and implement a comprehensive educational diversion
35	35	5program. The attorney general may solicit input from the Massachusetts Aggression Reduction
36	36	6Center at Bridgewater State University. The program shall be designed to provide teenagers with
37	37	7information about the legal consequences of and the penalties for transmitting indecent visual
38	38	8depictions known as, “sexting”, or posting indecent visual depictions online, including the
39	39	9applicable federal and state statutes; the non-legal consequences of sexting or posting such
40	40	10pictures, including, but not limited to, the effect on relationships, loss of educational and
41	41	11employment opportunities, and being barred or removed from school programs and
42	42	12extracurricular activities; how the unique characteristics of cyberspace and the internet can 2 of 7
43	43	13produce long-term and unforeseen consequences for sexting and posting such photographs; and
44	44	14the connection between bullying and cyber-bulling and juveniles sexting or posting sexual
45	45	15images. The educational diversion program shall be used as part of any diversion program
46	46	16required pursuant to section 39N of chapter 119 and shall be made available to school districts
47	47	17for use in educational programs on the topic.
48	48	18 SECTION 2. Chapter 71 of the General Laws is hereby amended by inserting after
49	49	19section 98 the following section:-
50	50	20 Section 99. The department shall encourage school districts to implement instruction in
51	51	21media literacy skills at all grade levels, and in any of the core subjects or other subjects, to equip
52	52	22students with the knowledge and skills for accessing, analyzing, evaluating, and creating all
53	53	23types of media and use the educational diversion program established pursuant to section 35 of
54	54	24chapter 12 for educational programs on the topic.
55	55	25 SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after
56	56	26section 39M the following section:-
57	57	27 Section 39N. (a) If a child is alleged to be a juvenile delinquent by reason of violating
58	58	28sections 29B, 29C, or 29D of chapter 272 the court shall, prior to arraignment, indefinitely stay
59	59	29arraignment and direct that the child enter and complete the educational diversion program
60	60	30established pursuant to section 35 of chapter 12; provided, however, that the district attorney
61	61	31may object in writing to the stay of arraignment. If the district attorney so objects, the court shall
62	62	32consider the district attorney’s objections in its decision to direct a child to enter and complete
63	63	33said education diversion program. If the court finds, on its own motion or at the request of the
64	64	34district attorney, that the child has failed to complete the diversion program, the court shall bring 3 of 7
65	65	35the case forward, arraign the child and restore the delinquency complaint to the docket for further
66	66	36proceedings.
67	67	37 (b) If a child is alleged to be a juvenile delinquent by reason of violating sections 29B,
68	68	3829C, or 29D of chapter 272 and if arraignment has already occurred, the court shall place the
69	69	39child on pretrial probation under section 87 of chapter 276. The conditions of such probation
70	70	40shall include, but not be limited to, completion of the educational diversion program established
71	71	41in section 35 of chapter 12; provided, however, that the district attorney may object in writing to
72	72	42pretrial probation. If the district attorney so objects, the court shall consider the district attorney’s
73	73	43objections in its decision to place the child on pretrial probation. If the court finds, on its own
74	74	44motion or at the request of the district attorney, that the child has failed to comply with the
75	75	45conditions of probation, the court shall restore the delinquency complaint to the docket for trial
76	76	46or further proceedings.
77	77	47 SECTION 4. Section 43A of chapter 265 of the General Laws, as appearing in the 2020
78	78	48Official Edition, is hereby amended by striking out, in line 7, the figure “$1,000” and inserting in
79	79	49place thereof the following figure:- $5,000.
80	80	50 SECTION 5. Said section 43A of said chapter 265, as so appearing, is hereby further
81	81	51amended by striking out subsection (b) and inserting in place thereof the following subsections:-
82	82	52 (b)(1) As used in this subsection the following words shall, unless the context clearly
83	83	53requires otherwise have the following meanings:
84	84	54 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast, or
85	85	55engage in any other form of transmission, electronic or otherwise. 4 of 7
86	86	56 “Identifiable”, identifiable from the visual material itself or information offered in
87	87	57connection with the visual material.
88	88	58 “Partially nude”, the exposure of fully uncovered buttocks, or all or part of the human
89	89	59genitals or the female nipple-areolar complex.
90	90	60 “Publish”, disseminate with the intent that such image or images be made available by
91	91	61any means to any person or other legal entity; disseminate with the intent that such images be
92	92	62sold by another person or legal entity; post, present, display, exhibit, circulate, advertise or allow
93	93	63access by any means, so as to make an image or images available to the public; or disseminate
94	94	64with the intent that an image or images be posted, presented, displayed, exhibited, circulated,
95	95	65advertised or made accessible by any means, and to make such images available to the public.
96	96	66 “Visual material”, any photograph, film, video, or digital image or recording, whether
97	97	67produced by electronic, mechanical or other means or any part, representation or reproduction
98	98	68thereof.
99	99	69 (2) Whoever knowingly distributes visual material depicting another person, either
100	100	70identifiable in the visual material or identified by the distributing person, who is nude, partially
101	101	71nude or engaged in sexual conduct, when the distribution causes physical or economic injury to
102	102	72the person depicted in the visual material or causes the person depicted in the visual material to
103	103	73suffer substantial emotional distress, and does so with the intent to harm, harass, intimidate,
104	104	74threaten, coerce or cause emotional distress, or does so with reckless disregard for the depicted
105	105	75person’s lack of consent to the distribution of the visual material and reasonable expectation that
106	106	76the visual material would remain private, shall be guilty of the crime of criminal harassment and 5 of 7
107	107	77shall be punished by imprisonment in a house of correction for not more than 2½ years, by a fine
108	108	78of not more than $10,000, or by both such fine and imprisonment.
109	109	79 (3) For purposes of this subsection, consent to the creation of visual material shall not
110	110	80constitute consent to the distribution of the visual material.
111	111	81 (4) This subsection shall not preclude other remedies available at law or in equity,
112	112	82including, but not limited to, the issuance by a court with proper jurisdiction of appropriate
113	113	83orders to restrain or prevent the distribution of visual material in violation of this subsection.
114	114	84 (5) Visual material that is part of any court record arising from a prosecution under this
115	115	85subsection shall not be open to public inspection and, unless otherwise ordered in writing by the
116	116	86court, shall only be made available for inspection by court personnel to a prosecuting attorney, a
117	117	87defendant’s attorney, a defendant or a victim connected to such prosecution. This does not
118	118	88prohibit disclosure, inspection or other use of the visual material in the underlying prosecution or
119	119	89any related court proceeding in accordance with applicable evidentiary and procedural rules or
120	120	90court order.
121	121	91 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity
122	122	92or sexual conduct that is: (A) voluntary or consensual and occurring in a commercial setting, or
123	123	93(B) voluntary or consensual and occurring in a place where a person does not have a reasonable
124	124	94expectation of privacy; (ii) distribution made in the public interest, including the reporting of
125	125	95unlawful conduct; (iii) lawful and common practices of law enforcement, criminal reporting,
126	126	96corrections, legal proceedings or medical treatment, including telemedicine; (iv) distribution of
127	127	97visual material that constitutes a matter of public concern; (v) interactive computer services, as
128	128	98defined in 47 U.S.C. section 230(f)(2), for content solely provided by another person; or (vi) 6 of 7
129	129	99information services or telecommunications services, as defined in 47 U.S.C. section 153, for
130	130	100content solely provided by another person.
131	131	101 (c) Whoever, after having been convicted of the crime of criminal harassment, commits a
132	132	102second or subsequent offense, or whoever commits the crime of criminal harassment having
133	133	103previously been convicted of a violation of section 43, shall be punished by imprisonment in a
134	134	104house of correction for not more than 2½ years or by imprisonment in a state prison for not more
135	135	105than 10 years, by a fine of not more than $15,000, or by both such fine and imprisonment.
136	136	106 SECTION 6. Chapter 272 of the General Laws is hereby amended by inserting after
137	137	107section 29C the following section:-
138	138	108 Section 29D. (a) Whoever, while under 18 years of age, (i) possesses or disseminates to
139	139	109another person any visual material in violation of section 29B or section 29C, or (ii) whoever,
140	140	110while under 18 years of age, uploads visual material of another person in violation of this section
141	141	111to an internet website, shall be punished by commitment to the department of youth services for
142	142	112not more than 6 months, by a fine of not less than $50.00 and not more than $500.00, or by both
143	143	113such fine and commitment.
144	144	114 (b) A person does not knowingly disseminate the material in violation of this section by
145	145	115reporting the matter to a law enforcement agency, parent, teacher, principal, or other relevant
146	146	116school personnel, or by affording a law enforcement agency, parent, teacher, principal or other
147	147	117relevant school personnel access to the material.
148	148	118 (c) A person who has been adjudicated under this section shall not be required to register
149	149	119with the sex offender registry board and no data relating to such adjudication shall be transmitted
150	150	120to the board pursuant to section 178E of chapter 6. 7 of 7
151	151	121 (d) The juvenile court department shall have exclusive jurisdiction of proceedings under
152	152	122this section.
153	153	123 (e) It shall be an affirmative defense for any crime alleged under sections 29A, 29B, 29C,
154	154	124or under this section that: (i) the visual material portrays no person other than the defendant; or
155	155	125(ii) the defendant was under 18 years of age, the visual material portrays only an individual age
156	156	12616 or older and was knowingly and voluntarily created and provided to the defendant by the
157	157	127individual in the image, and the defendant has not provided or made available the material to
158	158	128another person except the individual depicted who originally sent the material to the defendant.
159	159	129 (f) Nothing in this section shall be construed to prohibit a prosecution for disorderly
160	160	130conduct, public indecency, child pornography, or any other applicable provision of law.