| 1 | 1 | | HOUSE . . . . . . . No. 4241 |
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| 2 | 2 | | The Commonwealth of Massachusetts |
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| 3 | 3 | | ______________________________________ |
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| 4 | 4 | | HOUSE OF REPRESENTATIVES, January 9, 2024. |
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| 5 | 5 | | The committee on Ways and Means, to whom was referred the Bill to |
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| 6 | 6 | | prevent abuse and exploitation (House, No. 4115), reports recommending |
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| 7 | 7 | | that the same ought to pass with an amendment substituting therefor the |
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| 8 | 8 | | accompanying bill (House, No. 4241). |
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| 9 | 9 | | For the committee, |
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| 10 | 10 | | AARON MICHLEWITZ. 1 of 10 |
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| 11 | 11 | | FILED ON: 1/9/2024 |
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| 12 | 12 | | HOUSE . . . . . . . . . . . . . . . No. 4241 |
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| 13 | 13 | | The Commonwealth of Massachusetts |
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| 14 | 14 | | _______________ |
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| 15 | 15 | | In the One Hundred and Ninety-Third General Court |
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| 16 | 16 | | (2023-2024) |
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| 17 | 17 | | _______________ |
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| 18 | 18 | | An Act to prevent abuse and exploitation. |
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| 19 | 19 | | Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority |
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| 20 | 20 | | of the same, as follows: |
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| 21 | 21 | | 1 SECTION 1. Chapter 12 of the General Laws is hereby amended by adding the following |
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| 22 | 22 | | 2section:- |
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| 23 | 23 | | 3 Section 36. (a) The attorney general, in consultation with the department of elementary |
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| 24 | 24 | | 4and secondary education, the department of youth services and the Massachusetts District |
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| 25 | 25 | | 5Attorneys Association, shall develop and implement a comprehensive educational diversion |
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| 26 | 26 | | 6program about the activity commonly known as “sexting”. The program shall be designed to |
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| 27 | 27 | | 7provide adolescents with information about: (i) the legal consequences of, and penalties for, |
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| 28 | 28 | | 8possessing or disseminating visual material in violation of section 29D of chapter 272 and other |
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| 29 | 29 | | 9applicable federal and state law; (ii) the non-legal consequences of possessing or disseminating |
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| 30 | 30 | | 10sexual images, including, but not limited to, the effect on relationships, loss of educational and |
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| 31 | 31 | | 11employment opportunities and removal, exclusion or expulsion from school programs and |
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| 32 | 32 | | 12extracurricular activities; (iii) how the internet may produce long-term and unforeseen |
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| 33 | 33 | | 13consequences for possessing or disseminating sexual images online, including the health of 2 of 10 |
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| 34 | 34 | | 14relationships and risk of trafficking; and (iv) the connection between adolescents possessing or |
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| 35 | 35 | | 15disseminating sexual images and sexual assault, dating violence and bullying. |
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| 36 | 36 | | 16 (b) In designing the curriculum, the attorney general shall research effective educational |
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| 37 | 37 | | 17diversion programs, including programs in other states and programs on sexting; provided, that |
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| 38 | 38 | | 18the attorney general shall annually review the program design and curriculum and make updates |
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| 39 | 39 | | 19as needed to improve efficacy. |
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| 40 | 40 | | 20 (c) The educational diversion program shall be used for any diversion program required |
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| 41 | 41 | | 21pursuant to section 54B of chapter 119; provided, that the district attorney or court having |
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| 42 | 42 | | 22jurisdiction may, where appropriate, refer a delinquent child or alleged delinquent child to said |
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| 43 | 43 | | 23educational diversion program for violations or alleged violations of other laws if the district |
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| 44 | 44 | | 24attorney or court deems said educational diversion program may be beneficial to a delinquent |
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| 45 | 45 | | 25child or alleged delinquent child. |
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| 46 | 46 | | 26 (d) Educational material from the educational diversion program shall be made available |
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| 47 | 47 | | 27to school districts for use in educational programs on the topic of possessing or disseminating |
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| 48 | 48 | | 28sexual images. |
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| 49 | 49 | | 29 SECTION 2. Chapter 71 of the General Laws is hereby amended by adding the following |
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| 50 | 50 | | 30section:- |
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| 51 | 51 | | 31 Section 100. The department shall encourage school districts to implement instruction in |
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| 52 | 52 | | 32media literacy skills at all grade levels, and in any of the core subjects under section 1D of |
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| 53 | 53 | | 33chapter 69, life skills programming or other subjects, to equip students with the knowledge and |
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| 54 | 54 | | 34skills for accessing, analyzing, evaluating and creating all types of media. The instruction shall 3 of 10 |
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| 55 | 55 | | 35use content from the educational diversion program established pursuant to section 36 of chapter |
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| 56 | 56 | | 3612. |
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| 57 | 57 | | 37 SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after |
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| 58 | 58 | | 38section 54A the following section:- |
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| 59 | 59 | | 39 Section 54B. (a) If a child is alleged to be a delinquent child by reason of violating |
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| 60 | 60 | | 40section 29B, 29C or 29D of chapter 272, the court shall, prior to arraignment, indefinitely stay |
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| 61 | 61 | | 41arraignment and direct that the child enter and complete the educational diversion program |
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| 62 | 62 | | 42established in section 36 of chapter 12; provided, however, that the district attorney may object |
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| 63 | 63 | | 43in writing to the stay of arraignment. If the district attorney so objects, the court shall consider |
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| 64 | 64 | | 44the district attorney’s objection and shall make a determination on whether to direct the child to |
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| 65 | 65 | | 45enter and complete said educational diversion program. If the court finds, on its own motion or at |
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| 66 | 66 | | 46the request of the district attorney, that the child has failed to complete the educational diversion |
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| 67 | 67 | | 47program, the court shall bring the case forward, arraign the child and restore the delinquency |
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| 68 | 68 | | 48complaint to the docket for further proceedings. |
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| 69 | 69 | | 49 (b) If a child is alleged to be a delinquent child by reason of violating section 29B, 29C or |
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| 70 | 70 | | 5029D of chapter 272 and arraignment has already occurred, the court shall place the child on |
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| 71 | 71 | | 51pretrial probation pursuant to section 87 of chapter 276. The district attorney may object in |
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| 72 | 72 | | 52writing to pretrial probation. If the district attorney so objects, the court shall consider the district |
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| 73 | 73 | | 53attorney’s objections in its decision to place the child on pretrial probation. The conditions of |
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| 74 | 74 | | 54such probation shall include, but shall not be limited to, completion of the educational diversion |
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| 75 | 75 | | 55program established in section 36 of chapter 12. If the court finds, on its own motion or at the |
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| 76 | 76 | | 56request of the district attorney, that the child has failed to comply with the conditions of 4 of 10 |
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| 77 | 77 | | 57probation, the court shall restore the delinquency complaint to the docket for trial or further |
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| 78 | 78 | | 58proceedings. |
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| 79 | 79 | | 59 SECTION 4. Section 1 of chapter 209A of the General Laws, as appearing in the 2022 |
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| 80 | 80 | | 60Official Edition, is hereby amended by striking out the definition of “Abuse” and inserting in |
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| 81 | 81 | | 61place thereof the following 2 definitions:- |
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| 82 | 82 | | 62 “Abuse”, the occurrence of 1 or more of the following acts between family or household |
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| 83 | 83 | | 63members: |
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| 84 | 84 | | 64 (a) attempting to cause or causing physical harm; |
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| 85 | 85 | | 65 (b) placing another in fear of imminent serious physical harm; |
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| 86 | 86 | | 66 (c) causing another to engage involuntarily in sexual relations by force, threat or duress; |
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| 87 | 87 | | 67 (d) coercive control. |
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| 88 | 88 | | 68 “Coercive control”, either: |
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| 89 | 89 | | 69 (a) a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce |
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| 90 | 90 | | 70or compel compliance of a family or household member that causes the family or household |
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| 91 | 91 | | 71member to fear physical harm or have a reduced sense of physical safety or autonomy, including, |
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| 92 | 92 | | 72but not limited to: |
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| 93 | 93 | | 73 (i) isolating the family or household member from friends, relatives or other sources of |
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| 94 | 94 | | 74support; |
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| 95 | 95 | | 75 (ii) depriving the family or household member of basic needs; 5 of 10 |
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| 96 | 96 | | 76 (iii) controlling, regulating or monitoring the family or household member’s activities, |
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| 97 | 97 | | 77communications, movements, finances, economic resources or access to services, including |
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| 98 | 98 | | 78through technological means; |
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| 99 | 99 | | 79 (iv) compelling a family or household member to abstain from or engage in a specific |
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| 100 | 100 | | 80behavior or activity, including engaging in criminal activity; |
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| 101 | 101 | | 81 (v) threatening to harm a child or relative of the family or household member; |
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| 102 | 102 | | 82 (vi) threatening to commit cruelty or abuse to an animal connected to the family or |
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| 103 | 103 | | 83household member; |
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| 104 | 104 | | 84 (vii) intentionally damaging property belonging to the family or household member; |
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| 105 | 105 | | 85 (viii) threatening to publish sensitive personal information relating to the family or |
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| 106 | 106 | | 86household member, including sexually explicit images; or |
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| 107 | 107 | | 87 (ix) using repeated court actions found by a court not to be warranted by existing law or |
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| 108 | 108 | | 88good faith argument; or |
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| 109 | 109 | | 89 (b) a single act intended to threaten, intimidate, harass, isolate, control, coerce or compel |
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| 110 | 110 | | 90compliance of a family or household member that causes the family or household member to fear |
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| 111 | 111 | | 91physical harm or have a reduced sense of physical safety or autonomy, including, but not limited |
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| 112 | 112 | | 92to: |
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| 113 | 113 | | 93 (i) harming a child or relative of the family or household member; |
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| 114 | 114 | | 94 (ii) committing abuse to an animal connected to the family or household member; or |
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| 115 | 115 | | 95 (iii) publishing sexually explicit images of the family or household member. 6 of 10 |
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| 116 | 116 | | 96 SECTION 5. Section 43A of chapter 265 of the General Laws, as so appearing, is hereby |
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| 117 | 117 | | 97amended by striking out, in line 7, the figure “$1,000” and inserting in place thereof the |
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| 118 | 118 | | 98following figure:- $5,000. |
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| 119 | 119 | | 99 SECTION 6. Said section 43A of said chapter 265, as so appearing, is hereby further |
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| 120 | 120 | | 100amended by striking out subsection (b) and inserting in place thereof the following 2 |
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| 121 | 121 | | 101subsections:- |
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| 122 | 122 | | 102 (b)(1) As used in this subsection, the following words shall, unless the context clearly |
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| 123 | 123 | | 103requires otherwise, have the following meanings: |
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| 124 | 124 | | 104 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast or |
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| 125 | 125 | | 105engage in any other form of transmission, electronic or otherwise. |
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| 126 | 126 | | 106 “Identifiable”, identifiable from the visual material itself or information offered in |
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| 127 | 127 | | 107connection with the visual material. |
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| 128 | 128 | | 108 “Partially nude”, the exposure of fully uncovered buttocks, or all or part of the human |
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| 129 | 129 | | 109genitals or the female nipple-areolar complex. |
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| 130 | 130 | | 110 “Publish”, (i) disseminate an image with the intent that it be made available by any means |
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| 131 | 131 | | 111to any person or other legal entity; (ii) disseminate an image with the intent that it be sold by |
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| 132 | 132 | | 112another person or legal entity; (iii) post, present, display, exhibit, circulate, advertise or allow |
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| 133 | 133 | | 113access by any means, so as to make an image available to the public; or (iv) disseminate an |
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| 134 | 134 | | 114image with the intent that it be posted, presented, displayed, exhibited, circulated, advertised or |
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| 135 | 135 | | 115made accessible by any means, and to make such image available to the public. 7 of 10 |
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| 136 | 136 | | 116 “Visual material”, any photograph, film, video, or digital image or recording, whether |
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| 137 | 137 | | 117produced by electronic, mechanical or other means or any part, representation or reproduction |
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| 138 | 138 | | 118thereof. |
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| 139 | 139 | | 119 (2) Whoever knowingly distributes visual material depicting another person, either |
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| 140 | 140 | | 120identifiable in the visual material or identified by the distributing person, who is nude, partially |
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| 141 | 141 | | 121nude or engaged in sexual conduct, when the distribution causes physical or economic injury or |
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| 142 | 142 | | 122substantial emotional distress to the person depicted in the visual material, and does so (i) with |
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| 143 | 143 | | 123the intent to harm, harass, intimidate, threaten, coerce or cause substantial emotional distress, or |
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| 144 | 144 | | 124(ii) with reckless disregard for the depicted person’s lack of consent to the distribution of the |
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| 145 | 145 | | 125visual material and reasonable expectation that the visual material would remain private, shall be |
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| 146 | 146 | | 126guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of |
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| 147 | 147 | | 127correction for not more than 2½ years, by a fine of not more than $10,000, or by both such fine |
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| 148 | 148 | | 128and imprisonment. |
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| 149 | 149 | | 129 (3) For purposes of this subsection, consent to the creation of visual material shall not |
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| 150 | 150 | | 130constitute consent to the distribution of the visual material. |
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| 151 | 151 | | 131 (4) This subsection shall not preclude other remedies available at law or in equity, |
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| 152 | 152 | | 132including, but not limited to, the issuance by a court with proper jurisdiction of appropriate |
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| 153 | 153 | | 133orders to restrain or prevent the distribution of visual material in violation of this subsection. |
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| 154 | 154 | | 134 (5) Visual material that is part of any court record arising from a prosecution under this |
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| 155 | 155 | | 135subsection shall not be open to public inspection and, unless otherwise ordered in writing by the |
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| 156 | 156 | | 136court, shall only be made available for inspection by court personnel to a prosecuting attorney, a |
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| 157 | 157 | | 137defendant’s attorney, a defendant or a victim connected to such prosecution; provided, however, 8 of 10 |
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| 158 | 158 | | 138that this paragraph shall not prohibit disclosure, inspection or other use of the visual material in |
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| 159 | 159 | | 139the underlying prosecution or any related court proceeding in accordance with applicable |
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| 160 | 160 | | 140evidentiary and procedural rules or court order. |
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| 161 | 161 | | 141 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity |
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| 162 | 162 | | 142or sexual conduct that is voluntary or consensual and occurring (A) in a commercial setting, or |
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| 163 | 163 | | 143(B) in a place where a person does not have a reasonable expectation of privacy; (ii) distribution |
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| 164 | 164 | | 144made in the public interest, including the reporting of unlawful conduct; (iii) lawful and common |
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| 165 | 165 | | 145practices of law enforcement, criminal reporting, corrections, legal proceedings or medical |
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| 166 | 166 | | 146treatment, including telemedicine; (iv) distribution of visual material that constitutes a matter of |
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| 167 | 167 | | 147public concern; (v) interactive computer services, as defined in 47 U.S.C. 230(f)(2), for content |
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| 168 | 168 | | 148solely provided by another person; or (vi) information services or telecommunications services, |
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| 169 | 169 | | 149as defined in 47 U.S.C. 153, for content solely provided by another person. |
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| 170 | 170 | | 150 (c) Whoever, after having been convicted of an offense under this section, commits a |
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| 171 | 171 | | 151second or subsequent offense, or whoever commits an offense under this section having |
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| 172 | 172 | | 152previously been convicted of a violation of section 43, shall be punished by imprisonment in a |
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| 173 | 173 | | 153house of correction for not more than 2½ years or in a state prison for not more than 10 years, by |
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| 174 | 174 | | 154a fine of not more than $15,000, or by both such fine and imprisonment. |
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| 175 | 175 | | 155 SECTION 7. Chapter 272 of the General Laws is hereby amended by inserting after |
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| 176 | 176 | | 156section 29C the following section:- |
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| 177 | 177 | | 157 Section 29D. (a) Whoever possesses, purchases, disseminates to another person or |
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| 178 | 178 | | 158uploads any visual material, as defined in section 31, to an internet website in violation of section 9 of 10 |
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| 179 | 179 | | 15929B or section 29C while under the age of 18 may be punished by a commitment to the |
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| 180 | 180 | | 160department of youth services. |
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| 181 | 181 | | 161 (b) For the purposes of this section, knowingly disseminating visual material by (i) |
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| 182 | 182 | | 162reporting the matter to a law enforcement agency, parent, foster parent, guardian, teacher, |
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| 183 | 183 | | 163principal or other relevant school personnel; or (ii) by affording a law enforcement agency, |
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| 184 | 184 | | 164parent, foster parent, guardian, teacher, principal or other relevant school personnel access to the |
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| 185 | 185 | | 165visual material shall not constitute dissemination in violation of this section. |
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| 186 | 186 | | 166 (c) A person who has been adjudicated under this section shall not be required to register |
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| 187 | 187 | | 167with the sex offender registry board and no data relating to such adjudication shall be transmitted |
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| 188 | 188 | | 168to the board pursuant to section 178E of chapter 6. |
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| 189 | 189 | | 169 (d) The juvenile court department shall have exclusive jurisdiction of proceedings under |
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| 190 | 190 | | 170this section. |
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| 191 | 191 | | 171 (e) It shall be an affirmative defense for any crime alleged to have been committed by a |
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| 192 | 192 | | 172juvenile under section 29A, 29B, 29C or this section that: (i) the visual material portrays no |
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| 193 | 193 | | 173person other than the juvenile; or (ii)(A) the juvenile was under 18 years of age, (B) the visual |
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| 194 | 194 | | 174material portrays only an individual age 16 or older, (C) the visual material was knowingly and |
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| 195 | 195 | | 175voluntarily created and provided to the juvenile by the individual in the image, and (D) the |
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| 196 | 196 | | 176juvenile has not provided or made available the material to another person except the individual |
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| 197 | 197 | | 177depicted who originally sent the material to the juvenile. |
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| 198 | 198 | | 178 (f) Nothing in this section shall be construed to prohibit a prosecution for disorderly |
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| 199 | 199 | | 179conduct, public indecency, child pornography or any other applicable provision of law. 10 of 10 |
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| 200 | 200 | | 180 SECTION 8. Section 63 of chapter 277 of the General Laws, as appearing in the 2022 |
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| 201 | 201 | | 181Official Edition, is hereby amended by striking out, in line 13, the word “sections” and inserting |
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| 202 | 202 | | 182in place thereof the following words:- clause (iii) of subsection (b) of section 13A, sections |
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| 203 | 203 | | 18313M,. |
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