Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H4115 Compare Versions

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1	1	HOUSE . . . . . . . . No. 4115
2	2	The Commonwealth of Massachusetts
3	3	________________________________________
4	4	HOUSE OF REPRESENTATIVES, October 10, 2023.
5	5	The committee on the Judiciary to whom were referred the petition
6	6	(accompanied by bill, Senate, No. 1012) of John F. Keenan, James K.
7	7	Hawkins, Walter F. Timilty, Kay Khan and other members of the General
8	8	Court for legislation relative to transmit indecent visual depictions by
9	9	teens and the unlawful distribution of explicit images, the petition
10	10	(accompanied by bill, Senate, No. 1077) of Michael O. Moore, Susannah
11	11	M. Whipps, Jack Patrick Lewis, Rebecca L. Rausch and other members of
12	12	the General Court for legislation to improve protections relative to
13	13	domestic violence, the petition (accompanied by bill, Senate, No. 1097) of
14	14	Patrick M. O'Connor for legislation relative to domestic abuse prevention,
15	15	the petition (accompanied by bill, Senate, No. 1139) of John C. Velis for
16	16	legislation relative to transmitting indecent visual depictions by teens and
17	17	the unlawful distribution of explicit images, and the petition (accompanied
18	18	by bill, House, No. 1542) of Richard M. Haggerty relative to victims of
19	19	coercive control, the petition (accompanied by bill, House, No. 1547) of
20	20	Natalie M. Higgins, Tram T. Nguyen and others relative to domestic
21	21	violence protections, the petition (accompanied by bill, House, No. 1745)
22	22	of Jeffrey N. Roy and others relative to transmitting indecent visual
23	23	depictions by teens and the unlawful distribution of explicit images, and
24	24	the petition (accompanied by bill, House, No. 3856) of Meghan Kilcoyne
25	25	relative to coercive control occurring between family or household
26	26	members, reports recommending that the accompanying bill (House, No.
27	27	4115) ought to pass.
28	28	For the committee,
29	29	MICHAEL S. DAY. 1 of 9
30	30	FILED ON: 10/5/2023
31	31	HOUSE . . . . . . . . . . . . . . . No. 4115
32	32	The Commonwealth of Massachusetts
33	33	_______________
34	34	In the One Hundred and Ninety-Third General Court
35	35	(2023-2024)
36	36	_______________
37	37	An Act to prevent abuse and exploitation.
38	38	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
39	39	of the same, as follows:
40	40	1 SECTION 1. Chapter 12 of the General Laws, as appearing in the 2022 Official Edition,
41	41	2is hereby amended by inserting after section 35 the following section: -
42	42	3 Section 36. The attorney general, in consultation with the department of elementary and
43	43	4secondary education, the department of youth services and the Massachusetts district attorneys
44	44	5association shall develop and implement a comprehensive educational diversion program. The
45	45	6program shall be designed to provide adolescents with information about: (i) the legal
46	46	7consequences of, and penalties for, possessing or disseminating visual material in violation of
47	47	8section 29D of chapter 272, commonly known as “sexting”, including applicable federal and
48	48	9state law; (ii) the non-legal consequences of sexting or posting sexual images, including, but not
49	49	10limited to, the effect on relationships, loss of educational and employment opportunities, and
50	50	11removal, exclusion or expulsion from school programs and extracurricular activities; (iii) how
51	51	12the unique characteristics of the internet can produce long-term and unforeseen consequences for
52	52	13sexting and posting sexual images online, including the impact on health relationships and risk of
53	53	14trafficking; and (iv) and the connection between bullying and cyber-bullying, sexual assault and 2 of 9
54	54	15dating violence and juveniles sexting or posting sexual images. The attorney general shall
55	55	16consult available research on effective educational diversion programs, including programs on
56	56	17sexting, in designing the curriculum and shall annually review the program design and make
57	57	18updates as needed to improve efficacy. The educational diversion program shall be used as part
58	58	19of any diversion program required pursuant to section 54B of chapter 119 and shall be made
59	59	20available to school districts for use in educational programs on the topic. Law enforcement,
60	60	21district attorneys and clerk magistrates may refer a child, where appropriate, to the educational
61	61	22diversion program.
62	62	23 SECTION 2. Chapter 71 of the General Laws, as so appearing, is hereby amended by
63	63	24inserting after section 98 the following section: -
64	64	25 Section 99. The department shall encourage school districts to implement instruction in
65	65	26media literacy skills at all grade levels, and in any of the core subjects under section 1D of
66	66	27chapter 69, life skills programming or other subjects, to equip students with the knowledge and
67	67	28skills for accessing, analyzing, evaluating and creating all types of media and shall use content
68	68	29from the educational diversion program established pursuant to section 36 of chapter 12 in this
69	69	30instruction.
70	70	31 SECTION 3. Chapter 119 of the General Laws, as so appearing, is hereby amended by
71	71	32inserting after section 54A the following section: -
72	72	33 Section 54B (a) If a child is alleged to be a delinquent child by reason of violating
73	73	34sections 29B, 29C, or 29D of chapter 272 the court shall, prior to arraignment, indefinitely stay
74	74	35arraignment and direct that the child enter and complete the educational diversion program
75	75	36established pursuant to section 36 of chapter 12; provided, however, that the district attorney 3 of 9
76	76	37may object in writing to the stay of arraignment. If the district attorney so objects, the court shall
77	77	38consider the district attorney’s objection and make a determination whether to direct a child to
78	78	39enter and complete said education diversion program. If the court finds, on its own motion or at
79	79	40the request of the district attorney, that the child has failed to complete the diversion program,
80	80	41the court shall bring the case forward, arraign the child and restore the delinquency complaint to
81	81	42the docket for further proceedings.
82	82	43 (b) If a child is alleged to be a delinquent child by reason of violating sections 29B, 29C,
83	83	44or 29D of chapter 272 and arraignment has already occurred, the court shall place the child on
84	84	45pretrial probation pursuant to section 87 of chapter 276. The conditions of such probation shall
85	85	46include, but not be limited to, completion of the educational diversion program established
86	86	47pursuant to section 36 of chapter 12; provided, however, that the district attorney may object in
87	87	48writing to pretrial probation. If the district attorney so objects, the court shall consider the district
88	88	49attorney’s objections in its decision to place the child on pretrial probation. If the court finds, on
89	89	50its own motion or at the request of the district attorney, that the child has failed to comply with
90	90	51the conditions of probation, the court shall restore the delinquency complaint to the docket for
91	91	52trial or further proceedings.
92	92	53 SECTION 4. Section 1 of Chapter 209A of the General Laws, as so appearing, is hereby
93	93	54amended by striking out the definition of “abuse” and inserting in place thereof the following
94	94	55definitions: -
95	95	56 “Abuse”, the occurrence of one or more of the following acts between family or
96	96	57household members:
97	97	58 (a) attempting to cause or causing physical harm; 4 of 9
98	98	59 (b) placing another in fear of imminent serious physical harm;
99	99	60 (c) causing another to engage involuntarily in sexual relations by force, threat or duress;
100	100	61 (d) coercive control.
101	101	62 “Coercive control”, an act or pattern of behavior committed with the intent to
102	102	63substantially restrict an individual’s safety or autonomy through threat, intimidation, harassment,
103	103	64isolation, control, coercion or compelled compliance, including but not limited to:
104	104	65 (i) isolating the family or household member from friends, relatives or other sources of
105	105	66support;
106	106	67 (ii) depriving the family or household member of basic needs;
107	107	68 (iii) repeatedly humiliating or using degrading language or behavior towards the family
108	108	69or household member;
109	109	70 (iv) controlling, regulating or monitoring the family or household member’s activities,
110	110	71communications, movements, finances, economic resources, or access to services, including
111	111	72through technological means;
112	112	73 (v) compelling a family or household member to abstain from or engage in a specific
113	113	74behavior or activity, including engaging in criminal activity;
114	114	75 (vi) harming or threatening to harm a child or relative of the family or household
115	115	76member;
116	116	77 (vii) committing or threatening to commit cruelty or abuse to animals connected to the
117	117	78family or household member; 5 of 9
118	118	79 (viii) damaging property belonging to the family or household member;
119	119	80 (ix) threatening to publish sensitive personal information relating to the family or
120	120	81household member, including explicit images;
121	121	82 (x) threatening to make false reports to law enforcement or other government officials or
122	122	83agencies; or
123	123	84 (xi) using repeated court actions not warranted by existing law or good faith argument.
124	124	85 SECTION 5. Section 43A of chapter 265 of the General Laws, as so appearing, is hereby
125	125	86amended by striking out, in line 7, the figure “$1,000” and inserting in place thereof the
126	126	87following figure: - $5,000.
127	127	88 SECTION 6. Said section 43A of said chapter 265, as so appearing, is hereby further
128	128	89amended by striking out subsection (b) and inserting in place thereof the following subsections: -
129	129	90 (b)(1) As used in this subsection the following words shall have the following meanings
130	130	91unless the context clearly requires otherwise:
131	131	92 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast, or
132	132	93engage in any other form of transmission, electronic or otherwise.
133	133	94 “Identifiable”, identifiable from the visual material itself or information offered in
134	134	95connection with the visual material.
135	135	96 “Partially nude”, the exposure of fully uncovered buttocks, or all or part of the human
136	136	97genitals or the female nipple-areolar complex. 6 of 9
137	137	98 “Publish”, (i) disseminate with the intent that an image or images be made available by
138	138	99any means to any person or other legal entity; (ii) disseminate with the intent that an image or
139	139	100images be sold by another person or legal entity; (iii) post, present, display, exhibit, circulate,
140	140	101advertise or allow access by any means, so as to make an image or images available to the
141	141	102public; or (iv) disseminate with the intent that an image or images be posted, presented,
142	142	103displayed, exhibited, circulated, advertised or made accessible by any means, and to make such
143	143	104images available to the public.
144	144	105 “Visual material”, any photograph, film, video, or digital image or recording, whether
145	145	106produced by electronic, mechanical or other means or any part, representation or reproduction
146	146	107thereof.
147	147	108 (2) Whoever knowingly distributes visual material depicting another person, either
148	148	109identifiable in the visual material or identified by the distributing person, who is nude, partially
149	149	110nude or engaged in sexual conduct, when the distribution causes physical or economic injury to
150	150	111the person depicted in the visual material or causes the person depicted in the visual material to
151	151	112suffer substantial emotional distress, and does so with the intent to harm, harass, intimidate,
152	152	113threaten, coerce or cause substantial emotional distress, or does so with reckless disregard for the
153	153	114depicted person’s lack of consent to the distribution of the visual material and reasonable
154	154	115expectation that the visual material would remain private, shall be guilty of the crime of criminal
155	155	116harassment and shall be punished by imprisonment in a house of correction for not more than 2½
156	156	117years, by a fine of not more than $10,000, or by both such fine and imprisonment.
157	157	118 (3) For purposes of this subsection, consent to the creation of visual material shall not
158	158	119constitute consent to the distribution of the visual material. 7 of 9
159	159	120 (4) This subsection shall not preclude other remedies available at law or in equity,
160	160	121including, but not limited to, the issuance by a court with proper jurisdiction of appropriate
161	161	122orders to restrain or prevent the distribution of visual material in violation of this subsection.
162	162	123 (5) Visual material that is part of any court record arising from a prosecution under this
163	163	124subsection shall not be open to public inspection and, unless otherwise ordered in writing by the
164	164	125court, shall only be made available for inspection by court personnel to a prosecuting attorney, a
165	165	126defendant’s attorney, a defendant or a victim connected to such prosecution; provided, however,
166	166	127that this paragraph shall not prohibit disclosure, inspection or other use of the visual material in
167	167	128the underlying prosecution or any related court proceeding in accordance with applicable
168	168	129evidentiary and procedural rules or court order.
169	169	130 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity
170	170	131or sexual conduct that is voluntary or consensual and occurring: (A) in a commercial setting, or
171	171	132(B) in a place where a person does not have a reasonable expectation of privacy; (ii) distribution
172	172	133made in the public interest, including the reporting of unlawful conduct; (iii) lawful and common
173	173	134practices of law enforcement, criminal reporting, corrections, legal proceedings or medical
174	174	135treatment, including telemedicine; (iv) distribution of visual material that constitutes a matter of
175	175	136public concern; (v) interactive computer services, as defined in 47 U.S.C. 230(f)(2), for content
176	176	137solely provided by another person; or (vi) information services or telecommunications services,
177	177	138as defined in 47 U.S.C. 153, for content solely provided by another person.
178	178	139 (c) Whoever, after having been convicted of an offense under this section, commits a
179	179	140second or subsequent offense, or whoever commits an offense under this section having
180	180	141previously been convicted of a violation of section 43, shall be punished by imprisonment in a 8 of 9
181	181	142house of correction for not more than 2½ years or in a state prison for not more than 10 years, by
182	182	143a fine of not more than $15,000, or by both such fine and imprisonment.
183	183	144 SECTION 7. Chapter 272 of the General Laws, as so appearing, is hereby amended by
184	184	145inserting after section 29C the following section: -
185	185	146 Section 29D. (a) Whoever, while under the age of criminal majority: (i) possesses,
186	186	147purchases or disseminates to another person any visual material in violation of section 29B or
187	187	148section 29C of this chapter, or (ii) whoever, while under the age of criminal majority, uploads
188	188	149visual material of another person in violation of this section to an internet website, may be
189	189	150punished by a commitment to the department of youth services.
190	190	151 (b) Knowingly disseminating visual material by reporting the matter to a law enforcement
191	191	152agency, parent, foster parent, guardian, teacher, principal, or other relevant school personnel, or
192	192	153by affording a law enforcement agency, parent, foster parent, guardian, teacher, principal or
193	193	154other relevant school personnel access to the visual material shall not constitute dissemination in
194	194	155violation of this section.
195	195	156 (c) A person who has been adjudicated under this section shall not be required to register
196	196	157with the sex offender registry board and no data relating to such adjudication shall be transmitted
197	197	158to the board pursuant to section 178E of chapter 6.
198	198	159 (d) The juvenile court department shall have exclusive jurisdiction of proceedings under
199	199	160this section.
200	200	161 (e) It shall be an affirmative defense for any crime alleged under sections 29A, 29B, 29C
201	201	162or 29D of this chapter that: (i) the visual material portrays no person other than the juvenile; or 9 of 9
202	202	163(ii) the juvenile was under the age of criminal majority, the visual material portrays only an
203	203	164individual age 16 or older and was knowingly and voluntarily created and provided to the
204	204	165juvenile by the individual in the image, and the juvenile has not provided or made available the
205	205	166material to another person except the individual depicted who originally sent the material to the
206	206	167juvenile.
207	207	168 (f) Nothing in this section shall be construed to prohibit a prosecution for disorderly
208	208	169conduct, public indecency, child pornography, or any other applicable provision of law.
209	209	170 SECTION 8. Section 63 of chapter 277 of the General Laws, as so appearing, is hereby
210	210	171amended by striking, in line 13, the word “sections” and inserting in place thereof the following
211	211	172words: - subsection (b)(iii) of 13A, sections 13M,.