HOUSE . . . . . . . . No. 4115
The Commonwealth of Massachusetts
________________________________________
HOUSE OF REPRESENTATIVES, October 10, 2023.
The committee on the Judiciary to whom were referred the petition
(accompanied by bill, Senate, No. 1012) of John F. Keenan, James K.
Hawkins, Walter F. Timilty, Kay Khan and other members of the General
Court for legislation relative to transmit indecent visual depictions by
teens and the unlawful distribution of explicit images, the petition
(accompanied by bill, Senate, No. 1077) of Michael O. Moore, Susannah
M. Whipps, Jack Patrick Lewis, Rebecca L. Rausch and other members of
the General Court for legislation to improve protections relative to
domestic violence, the petition (accompanied by bill, Senate, No. 1097) of
Patrick M. O'Connor for legislation relative to domestic abuse prevention,
the petition (accompanied by bill, Senate, No. 1139) of John C. Velis for
legislation relative to transmitting indecent visual depictions by teens and
the unlawful distribution of explicit images, and the petition (accompanied
by bill, House, No. 1542) of Richard M. Haggerty relative to victims of
coercive control, the petition (accompanied by bill, House, No. 1547) of
Natalie M. Higgins, Tram T. Nguyen and others relative to domestic
violence protections, the petition (accompanied by bill, House, No. 1745)
of Jeffrey N. Roy and others relative to transmitting indecent visual
depictions by teens and the unlawful distribution of explicit images, and
the petition (accompanied by bill, House, No. 3856) of Meghan Kilcoyne
relative to coercive control occurring between family or household
members, reports recommending that the accompanying bill (House, No.
4115) ought to pass.
For the committee,
MICHAEL S. DAY. 1 of 9
FILED ON: 10/5/2023
HOUSE . . . . . . . . . . . . . . . No. 4115
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to prevent abuse and exploitation.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 12 of the General Laws, as appearing in the 2022 Official Edition,
2is hereby amended by inserting after section 35 the following section: -
3 Section 36. The attorney general, in consultation with the department of elementary and
4secondary education, the department of youth services and the Massachusetts district attorneys
5association shall develop and implement a comprehensive educational diversion program. The
6program shall be designed to provide adolescents with information about: (i) the legal
7consequences of, and penalties for, possessing or disseminating visual material in violation of
8section 29D of chapter 272, commonly known as “sexting”, including applicable federal and
9state law; (ii) the non-legal consequences of sexting or posting sexual images, including, but not
10limited to, the effect on relationships, loss of educational and employment opportunities, and
11removal, exclusion or expulsion from school programs and extracurricular activities; (iii) how
12the unique characteristics of the internet can produce long-term and unforeseen consequences for
13sexting and posting sexual images online, including the impact on health relationships and risk of
14trafficking; and (iv) and the connection between bullying and cyber-bullying, sexual assault and 2 of 9
15dating violence and juveniles sexting or posting sexual images. The attorney general shall
16consult available research on effective educational diversion programs, including programs on
17sexting, in designing the curriculum and shall annually review the program design and make
18updates as needed to improve efficacy. The educational diversion program shall be used as part
19of any diversion program required pursuant to section 54B of chapter 119 and shall be made
20available to school districts for use in educational programs on the topic. Law enforcement,
21district attorneys and clerk magistrates may refer a child, where appropriate, to the educational
22diversion program.
23 SECTION 2. Chapter 71 of the General Laws, as so appearing, is hereby amended by
24inserting after section 98 the following section: -
25 Section 99. The department shall encourage school districts to implement instruction in
26media literacy skills at all grade levels, and in any of the core subjects under section 1D of
27chapter 69, life skills programming or other subjects, to equip students with the knowledge and
28skills for accessing, analyzing, evaluating and creating all types of media and shall use content
29from the educational diversion program established pursuant to section 36 of chapter 12 in this
30instruction.
31 SECTION 3. Chapter 119 of the General Laws, as so appearing, is hereby amended by
32inserting after section 54A the following section: -
33 Section 54B (a) If a child is alleged to be a delinquent child by reason of violating
34sections 29B, 29C, or 29D of chapter 272 the court shall, prior to arraignment, indefinitely stay
35arraignment and direct that the child enter and complete the educational diversion program
36established pursuant to section 36 of chapter 12; provided, however, that the district attorney 3 of 9
37may object in writing to the stay of arraignment. If the district attorney so objects, the court shall
38consider the district attorney’s objection and make a determination whether to direct a child to
39enter and complete said education diversion program. If the court finds, on its own motion or at
40the request of the district attorney, that the child has failed to complete the diversion program,
41the court shall bring the case forward, arraign the child and restore the delinquency complaint to
42the docket for further proceedings.
43 (b) If a child is alleged to be a delinquent child by reason of violating sections 29B, 29C,
44or 29D of chapter 272 and arraignment has already occurred, the court shall place the child on
45pretrial probation pursuant to section 87 of chapter 276. The conditions of such probation shall
46include, but not be limited to, completion of the educational diversion program established
47pursuant to section 36 of chapter 12; provided, however, that the district attorney may object in
48writing to pretrial probation. If the district attorney so objects, the court shall consider the district
49attorney’s objections in its decision to place the child on pretrial probation. If the court finds, on
50its own motion or at the request of the district attorney, that the child has failed to comply with
51the conditions of probation, the court shall restore the delinquency complaint to the docket for
52trial or further proceedings.
53 SECTION 4. Section 1 of Chapter 209A of the General Laws, as so appearing, is hereby
54amended by striking out the definition of “abuse” and inserting in place thereof the following
55definitions: -
56 “Abuse”, the occurrence of one or more of the following acts between family or
57household members:
58 (a) attempting to cause or causing physical harm; 4 of 9
59 (b) placing another in fear of imminent serious physical harm;
60 (c) causing another to engage involuntarily in sexual relations by force, threat or duress;
61 (d) coercive control.
62 “Coercive control”, an act or pattern of behavior committed with the intent to
63substantially restrict an individual’s safety or autonomy through threat, intimidation, harassment,
64isolation, control, coercion or compelled compliance, including but not limited to:
65 (i) isolating the family or household member from friends, relatives or other sources of
66support;
67 (ii) depriving the family or household member of basic needs;
68 (iii) repeatedly humiliating or using degrading language or behavior towards the family
69or household member;
70 (iv) controlling, regulating or monitoring the family or household member’s activities,
71communications, movements, finances, economic resources, or access to services, including
72through technological means;
73 (v) compelling a family or household member to abstain from or engage in a specific
74behavior or activity, including engaging in criminal activity;
75 (vi) harming or threatening to harm a child or relative of the family or household
76member;
77 (vii) committing or threatening to commit cruelty or abuse to animals connected to the
78family or household member; 5 of 9
79 (viii) damaging property belonging to the family or household member;
80 (ix) threatening to publish sensitive personal information relating to the family or
81household member, including explicit images;
82 (x) threatening to make false reports to law enforcement or other government officials or
83agencies; or
84 (xi) using repeated court actions not warranted by existing law or good faith argument.
85 SECTION 5. Section 43A of chapter 265 of the General Laws, as so appearing, is hereby
86amended by striking out, in line 7, the figure “$1,000” and inserting in place thereof the
87following figure: - $5,000.
88 SECTION 6. Said section 43A of said chapter 265, as so appearing, is hereby further
89amended by striking out subsection (b) and inserting in place thereof the following subsections: -
90 (b)(1) As used in this subsection the following words shall have the following meanings
91unless the context clearly requires otherwise:
92 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast, or
93engage in any other form of transmission, electronic or otherwise.
94 “Identifiable”, identifiable from the visual material itself or information offered in
95connection with the visual material.
96 “Partially nude”, the exposure of fully uncovered buttocks, or all or part of the human
97genitals or the female nipple-areolar complex. 6 of 9
98 “Publish”, (i) disseminate with the intent that an image or images be made available by
99any means to any person or other legal entity; (ii) disseminate with the intent that an image or
100images be sold by another person or legal entity; (iii) post, present, display, exhibit, circulate,
101advertise or allow access by any means, so as to make an image or images available to the
102public; or (iv) disseminate with the intent that an image or images be posted, presented,
103displayed, exhibited, circulated, advertised or made accessible by any means, and to make such
104images available to the public.
105 “Visual material”, any photograph, film, video, or digital image or recording, whether
106produced by electronic, mechanical or other means or any part, representation or reproduction
107thereof.
108 (2) Whoever knowingly distributes visual material depicting another person, either
109identifiable in the visual material or identified by the distributing person, who is nude, partially
110nude or engaged in sexual conduct, when the distribution causes physical or economic injury to
111the person depicted in the visual material or causes the person depicted in the visual material to
112suffer substantial emotional distress, and does so with the intent to harm, harass, intimidate,
113threaten, coerce or cause substantial emotional distress, or does so with reckless disregard for the
114depicted person’s lack of consent to the distribution of the visual material and reasonable
115expectation that the visual material would remain private, shall be guilty of the crime of criminal
116harassment and shall be punished by imprisonment in a house of correction for not more than 2½
117years, by a fine of not more than $10,000, or by both such fine and imprisonment.
118 (3) For purposes of this subsection, consent to the creation of visual material shall not
119constitute consent to the distribution of the visual material. 7 of 9
120 (4) This subsection shall not preclude other remedies available at law or in equity,
121including, but not limited to, the issuance by a court with proper jurisdiction of appropriate
122orders to restrain or prevent the distribution of visual material in violation of this subsection.
123 (5) Visual material that is part of any court record arising from a prosecution under this
124subsection shall not be open to public inspection and, unless otherwise ordered in writing by the
125court, shall only be made available for inspection by court personnel to a prosecuting attorney, a
126defendant’s attorney, a defendant or a victim connected to such prosecution; provided, however,
127that this paragraph shall not prohibit disclosure, inspection or other use of the visual material in
128the underlying prosecution or any related court proceeding in accordance with applicable
129evidentiary and procedural rules or court order.
130 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity
131or sexual conduct that is voluntary or consensual and occurring: (A) in a commercial setting, or
132(B) in a place where a person does not have a reasonable expectation of privacy; (ii) distribution
133made in the public interest, including the reporting of unlawful conduct; (iii) lawful and common
134practices of law enforcement, criminal reporting, corrections, legal proceedings or medical
135treatment, including telemedicine; (iv) distribution of visual material that constitutes a matter of
136public concern; (v) interactive computer services, as defined in 47 U.S.C. 230(f)(2), for content
137solely provided by another person; or (vi) information services or telecommunications services,
138as defined in 47 U.S.C. 153, for content solely provided by another person.
139 (c) Whoever, after having been convicted of an offense under this section, commits a
140second or subsequent offense, or whoever commits an offense under this section having
141previously been convicted of a violation of section 43, shall be punished by imprisonment in a 8 of 9
142house of correction for not more than 2½ years or in a state prison for not more than 10 years, by
143a fine of not more than $15,000, or by both such fine and imprisonment.
144 SECTION 7. Chapter 272 of the General Laws, as so appearing, is hereby amended by
145inserting after section 29C the following section: -
146 Section 29D. (a) Whoever, while under the age of criminal majority: (i) possesses,
147purchases or disseminates to another person any visual material in violation of section 29B or
148section 29C of this chapter, or (ii) whoever, while under the age of criminal majority, uploads
149visual material of another person in violation of this section to an internet website, may be
150punished by a commitment to the department of youth services.
151 (b) Knowingly disseminating visual material by reporting the matter to a law enforcement
152agency, parent, foster parent, guardian, teacher, principal, or other relevant school personnel, or
153by affording a law enforcement agency, parent, foster parent, guardian, teacher, principal or
154other relevant school personnel access to the visual material shall not constitute dissemination in
155violation of this section.
156 (c) A person who has been adjudicated under this section shall not be required to register
157with the sex offender registry board and no data relating to such adjudication shall be transmitted
158to the board pursuant to section 178E of chapter 6.
159 (d) The juvenile court department shall have exclusive jurisdiction of proceedings under
160this section.
161 (e) It shall be an affirmative defense for any crime alleged under sections 29A, 29B, 29C
162or 29D of this chapter that: (i) the visual material portrays no person other than the juvenile; or 9 of 9
163(ii) the juvenile was under the age of criminal majority, the visual material portrays only an
164individual age 16 or older and was knowingly and voluntarily created and provided to the
165juvenile by the individual in the image, and the juvenile has not provided or made available the
166material to another person except the individual depicted who originally sent the material to the
167juvenile.
168 (f) Nothing in this section shall be construed to prohibit a prosecution for disorderly
169conduct, public indecency, child pornography, or any other applicable provision of law.
170 SECTION 8. Section 63 of chapter 277 of the General Laws, as so appearing, is hereby
171amended by striking, in line 13, the word “sections” and inserting in place thereof the following
172words: - subsection (b)(iii) of 13A, sections 13M,.