| 1 | 1 | | HOUSE . . . . . . . . . . . . . . No. 4744 |
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| 2 | 2 | | The Commonwealth of Massachusetts |
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| 3 | 3 | | _______________ |
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| 4 | 4 | | The committee of conference on the disagreeing votes of the two branches with reference |
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| 5 | 5 | | to the Senate amendment (striking out all after the enacting clause and inserting in place thereof |
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| 6 | 6 | | the text contained in Senate document numbered 2710) of the House Bill to prevent abuse and |
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| 7 | 7 | | exploitation (House, No. 4241, amended), reports recommending passage of the accompanying |
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| 8 | 8 | | bill (House, No. 4744). June 11, 2024. |
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| 9 | 9 | | Michael S. DayJohn F. KeenanChristine P. BarberJames B. Eldridge Alyson Sullivan-AlmeidaRyan C. Fattman |
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| 10 | 10 | | 1 of 12 |
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| 11 | 11 | | FILED ON: 6/11/2024 |
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| 12 | 12 | | HOUSE . . . . . . . . . . . . . . . No. 4744 |
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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 office of the child advocate, |
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| 24 | 24 | | 4the department of elementary and secondary education, the department of youth services, the |
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| 25 | 25 | | 5Massachusetts District Attorneys Association, the committee for public counsel services, the |
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| 26 | 26 | | 6commission on lesbian, gay, bisexual, transgender, queer and questioning youth, Jane Doe Inc.: |
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| 27 | 27 | | 7The Massachusetts Coalition Against Sexual Assault and Domestic Violence and MASOC, Inc., |
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| 28 | 28 | | 8shall develop and administer a comprehensive educational diversion program about the activity |
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| 29 | 29 | | 9commonly known as “sexting”. The program shall be designed to provide adolescents with |
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| 30 | 30 | | 10information about: (i) the legal consequences of and penalties for possessing or disseminating |
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| 31 | 31 | | 11visual material in violation of section 29D of chapter 272 and other applicable federal and state |
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| 32 | 32 | | 12laws; (ii) the nonlegal consequences of possessing and disseminating sexual images including, |
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| 33 | 33 | | 13but not limited to, the effect on relationships, loss of educational and employment opportunities |
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| 34 | 34 | | 14and removal, exclusion and expulsion from school programs and extracurricular activities; (iii) 2 of 12 |
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| 35 | 35 | | 15how the internet may produce long-term and unforeseen consequences for possessing or |
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| 36 | 36 | | 16disseminating sexual images online, including the health of relationships and risk of trafficking; |
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| 37 | 37 | | 17(iv) the responsible use of visual material digitization; and (v) the connection between |
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| 38 | 38 | | 18adolescents’ possession or dissemination of sexual images and sexual assault, dating violence |
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| 39 | 39 | | 19and bullying. |
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| 40 | 40 | | 20 (b) In designing the program curriculum, the attorney general shall research effective |
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| 41 | 41 | | 21educational diversion programs, including programs in other states and programs on sexting. The |
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| 42 | 42 | | 22office of the child advocate shall annually review the program design and curriculum and |
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| 43 | 43 | | 23recommend to the attorney general updates as needed to improve efficacy. |
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| 44 | 44 | | 24 (c) The educational diversion program created under this section shall be used for any |
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| 45 | 45 | | 25diversion program required pursuant to section 54B of chapter 119; provided, however, that the |
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| 46 | 46 | | 26district attorney or court having jurisdiction may, where appropriate, refer a delinquent child or |
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| 47 | 47 | | 27an alleged delinquent child to the educational diversion program under this section for violations |
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| 48 | 48 | | 28or alleged violations of other laws if the district attorney or court deems such educational |
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| 49 | 49 | | 29diversion program may be beneficial to a delinquent child or an alleged delinquent child. |
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| 50 | 50 | | 30 (d) Educational material from the educational diversion program shall be made available |
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| 51 | 51 | | 31to school districts for use in educational programs on the topic of possessing or disseminating |
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| 52 | 52 | | 32sexual images. |
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| 53 | 53 | | 33 SECTION 2. Chapter 71 of the General Laws is hereby amended by adding the following |
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| 54 | 54 | | 34section:- |
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| 55 | 55 | | 35 Section 100. The department shall encourage school districts to implement instruction in |
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| 56 | 56 | | 36age-appropriate media literacy skills at all grade levels, including in any of the core subjects 3 of 12 |
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| 57 | 57 | | 37under section 1D of chapter 69, life skills programming or other subjects, to equip students with |
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| 58 | 58 | | 38the knowledge and skills for accessing, analyzing, evaluating and creating all types of media. |
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| 59 | 59 | | 39The instruction shall use content from the educational diversion program developed under |
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| 60 | 60 | | 40section 36 of chapter 12. |
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| 61 | 61 | | 41 SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after |
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| 62 | 62 | | 42section 54A the following section:- |
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| 63 | 63 | | 43 Section 54B. (a) If a child is alleged to be a delinquent child by reason of a violation of |
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| 64 | 64 | | 44section 29B, 29C or 29D of chapter 272, the court shall, prior to arraignment, indefinitely stay |
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| 65 | 65 | | 45arraignment and direct the child to enter into and complete the educational diversion program |
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| 66 | 66 | | 46developed under section 36 of chapter 12; provided, however, that the district attorney may |
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| 67 | 67 | | 47object in writing to the stay of arraignment. If the district attorney so objects, the court shall |
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| 68 | 68 | | 48consider the objection of the district attorney and shall make a determination on whether to direct |
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| 69 | 69 | | 49the child to enter and complete the educational diversion program. The court may request that the |
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| 70 | 70 | | 50Massachusetts probation service conduct an assessment or that the attorney general make a |
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| 71 | 71 | | 51determination of eligibility to assist the court in making its determination. |
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| 72 | 72 | | 52 (b) The attorney general shall submit to the court a report indicating the child’s successful |
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| 73 | 73 | | 53completion of the educational diversion program. If the court finds on its own initiative or by |
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| 74 | 74 | | 54motion of the district attorney that the child has failed to complete the educational diversion |
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| 75 | 75 | | 55program, the court shall bring the case forward, arraign the child and restore the delinquency |
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| 76 | 76 | | 56complaint to the docket for further proceedings; provided, however, that the judge shall first |
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| 77 | 77 | | 57provide an opportunity for both the district attorney and counsel for the child to be heard on any |
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| 78 | 78 | | 58such motion. 4 of 12 |
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| 79 | 79 | | 59 (c) If a child is alleged to be a delinquent child by reason of a violation of section 29B, |
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| 80 | 80 | | 6029C or 29D of chapter 272 and arraignment has already occurred, the court shall, upon |
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| 81 | 81 | | 61consultation with counsel for the child, place the child on pretrial probation pursuant to section |
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| 82 | 82 | | 6287 of chapter 276. The conditions of such probation shall include, but not be limited to, |
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| 83 | 83 | | 63completion of the educational diversion program developed under section 36 of chapter 12. The |
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| 84 | 84 | | 64district attorney may object in writing to pretrial probation. If the district attorney so objects, the |
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| 85 | 85 | | 65court shall consider the objection of the district attorney and make a determination on whether to |
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| 86 | 86 | | 66place the child on pretrial probation. The court may request that the Massachusetts probation |
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| 87 | 87 | | 67service conduct an assessment or that the attorney general make a determination of eligibility to |
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| 88 | 88 | | 68assist the court in making its determination. |
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| 89 | 89 | | 69 (d) The attorney general shall submit to the court a report indicating the child’s successful |
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| 90 | 90 | | 70completion of the educational diversion program. If the court finds on its own initiative or by |
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| 91 | 91 | | 71motion of the district attorney that the child has failed to comply with the conditions of |
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| 92 | 92 | | 72probation, the court shall restore the delinquency complaint to the docket for trial or further |
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| 93 | 93 | | 73proceedings. |
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| 94 | 94 | | 74 (e) The following shall not be admissible against the child in any proceedings: (i) a |
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| 95 | 95 | | 75decision by the child not to enter into the educational diversion program developed under section |
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| 96 | 96 | | 7636 of chapter 12; (ii) a district attorney’s objection to a stay of arraignment or pretrial probation |
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| 97 | 97 | | 77in order for a child to enter into such educational diversion program; (iii) an assessment by the |
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| 98 | 98 | | 78Massachusetts probation service or a determination of eligibility by the attorney general for a |
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| 99 | 99 | | 79child to enter into such educational diversion program; and (iv) any statement made by the child |
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| 100 | 100 | | 80or the child's family during any assessment, determination of eligibility or hearing by the court to |
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| 101 | 101 | | 81determine whether to divert a child to such educational diversion program. A statement or other 5 of 12 |
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| 102 | 102 | | 82disclosure or a record thereof made by a child during the stay of proceedings or pretrial probation |
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| 103 | 103 | | 83shall not be disclosed at any time to a commonwealth or other law enforcement officer in |
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| 104 | 104 | | 84connection with the investigation or prosecution of any charges against the child or a |
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| 105 | 105 | | 85codefendant. |
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| 106 | 106 | | 86 SECTION 4. Section 1 of chapter 209A of the General Laws, as appearing in the 2022 |
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| 107 | 107 | | 87Official Edition, is hereby amended by striking out the definition of “Abuse” and inserting in |
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| 108 | 108 | | 88place thereof the following 2 definitions:- |
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| 109 | 109 | | 89 “Abuse”, the occurrence of any of the following acts between family or household |
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| 110 | 110 | | 90members: |
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| 111 | 111 | | 91 (a) attempting to cause or causing physical harm; |
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| 112 | 112 | | 92 (b) placing another in fear of imminent serious physical harm; |
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| 113 | 113 | | 93 (c) causing another to engage involuntarily in sexual relations by force, threat or duress; |
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| 114 | 114 | | 94 (d) coercive control. |
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| 115 | 115 | | 95 “Coercive control”, either: |
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| 116 | 116 | | 96 (a) a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce |
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| 117 | 117 | | 97or compel compliance of a family or household member that causes that family or household |
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| 118 | 118 | | 98member to reasonably fear physical harm or have a reduced sense of physical safety or |
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| 119 | 119 | | 99autonomy, including, but not limited to: |
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| 120 | 120 | | 100 (i) isolating the family or household member from friends, relatives or other sources of |
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| 121 | 121 | | 101support; 6 of 12 |
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| 122 | 122 | | 102 (ii) depriving the family or household member of basic needs; |
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| 123 | 123 | | 103 (iii) controlling, regulating or monitoring the family or household member’s activities, |
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| 124 | 124 | | 104communications, movements, finances, economic resources or access to services, including |
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| 125 | 125 | | 105through technological means; |
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| 126 | 126 | | 106 (iv) compelling a family or household member to abstain from or engage in a specific |
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| 127 | 127 | | 107behavior or activity, including engaging in criminal activity; |
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| 128 | 128 | | 108 (v) threatening to harm a child or relative of the family or household member; |
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| 129 | 129 | | 109 (vi) threatening to commit cruelty or abuse to an animal connected to the family or |
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| 130 | 130 | | 110household member; |
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| 131 | 131 | | 111 (vii) intentionally damaging property belonging to the family or household member; |
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| 132 | 132 | | 112 (viii) threatening to publish sensitive personal information relating to the family or |
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| 133 | 133 | | 113household member, including sexually explicit images; or |
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| 134 | 134 | | 114 (ix) using repeated court actions found by a court not to be warranted by existing law or |
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| 135 | 135 | | 115good faith argument; or |
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| 136 | 136 | | 116 (b) a single act intended to threaten, intimidate, harass, isolate, control, coerce or compel |
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| 137 | 137 | | 117compliance of a family or household member that causes the family or household member to |
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| 138 | 138 | | 118reasonably fear physical harm or have a reduced sense of physical safety or autonomy of: (i) |
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| 139 | 139 | | 119harming or attempting to harm a child or relative of the family or household member; (ii) |
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| 140 | 140 | | 120committing or attempting to commit abuse to an animal connected to the family or household |
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| 141 | 141 | | 121member; or (iii) publishing or attempting to publish sexually explicit images of the family or |
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| 142 | 142 | | 122household member. 7 of 12 |
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| 143 | 143 | | 123 SECTION 5. Section 43A of chapter 265 of the General Laws, as so appearing, is hereby |
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| 144 | 144 | | 124amended by striking out, in line 7, the figure “$1,000” and inserting in place thereof the |
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| 145 | 145 | | 125following figure:- $5,000. |
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| 146 | 146 | | 126 SECTION 6. Said section 43A of said chapter 265, as so appearing, is hereby further |
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| 147 | 147 | | 127amended by striking out subsection (b) and inserting in place thereof the following 2 |
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| 148 | 148 | | 128subsections:- |
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| 149 | 149 | | 129 (b)(1) As used in this subsection, the following words shall have the following meanings |
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| 150 | 150 | | 130unless the context clearly requires otherwise: |
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| 151 | 151 | | 131 “Digitization”, the creation or alteration of visual material including, but not limited to, |
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| 152 | 152 | | 132through the use of computer-generated images, in a manner that would falsely appear to a |
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| 153 | 153 | | 133reasonable person to be an authentic representation of the person depicted. |
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| 154 | 154 | | 134 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast or |
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| 155 | 155 | | 135engage in any other form of transmission, electronic or otherwise. |
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| 156 | 156 | | 136 “Identifiable”, recognizable from the visual material itself or from information offered in |
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| 157 | 157 | | 137connection with the visual material. |
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| 158 | 158 | | 138 “Partially nude”, the exposure of fully uncovered buttocks or all or part of the human |
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| 159 | 159 | | 139genitals or the female nipple-areolar complex. |
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| 160 | 160 | | 140 “Publish”, (i) disseminate an image with the intent that it be made available by any means |
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| 161 | 161 | | 141to any person or other legal entity; (ii) disseminate an image with the intent that it be sold by |
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| 162 | 162 | | 142another person or legal entity; (iii) post, present, display, exhibit, circulate, advertise or allow |
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| 163 | 163 | | 143access to an image by any means so as to make such image available to the public; or (iv) 8 of 12 |
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| 164 | 164 | | 144disseminate an image with the intent that it be posted, presented, displayed, exhibited, circulated, |
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| 165 | 165 | | 145advertised or made accessible by any means so as to make such image available to the public. |
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| 166 | 166 | | 146 “Visual material”, a photograph, film, video or digital image or recording, whether |
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| 167 | 167 | | 147produced by electronic, mechanical or other means, or any part, representation or reproduction |
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| 168 | 168 | | 148thereof. |
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| 169 | 169 | | 149 (2) Whoever knowingly distributes visual material, including visual material produced by |
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| 170 | 170 | | 150digitization, depicting another person, who is either identifiable in the visual material or |
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| 171 | 171 | | 151identified by the distributing person, who is nude, partially nude or engaged in sexual conduct |
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| 172 | 172 | | 152and to whom the distribution causes physical or economic injury or substantial emotional |
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| 173 | 173 | | 153distress, and distributes such visual material with: (i) the intent to harm, harass, intimidate, |
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| 174 | 174 | | 154threaten, coerce or cause substantial emotional distress; or (ii) reckless disregard for: (A) the |
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| 175 | 175 | | 155likelihood that the person depicted will suffer harm, harassment, intimidation, threat, coercion or |
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| 176 | 176 | | 156substantial emotional distress; (B) the depicted person’s lack of consent to the distribution of |
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| 177 | 177 | | 157such visual material, including material produced by digitization; and (C) the depicted person’s |
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| 178 | 178 | | 158reasonable expectation that the visual material would remain private, shall be guilty of the crime |
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| 179 | 179 | | 159of criminal harassment and shall be punished by imprisonment in a house of correction for not |
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| 180 | 180 | | 160more than 2½ years, by a fine of not more than $10,000 or by both such fine and imprisonment. |
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| 181 | 181 | | 161Nothing in this section shall preclude a prosecution under section 29C of chapter 272. |
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| 182 | 182 | | 162 (3) For the purposes of this subsection, consent to the creation of visual material shall not |
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| 183 | 183 | | 163constitute consent to the distribution of the visual material. 9 of 12 |
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| 184 | 184 | | 164 (4) This subsection shall not preclude other remedies available at law or in equity |
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| 185 | 185 | | 165including, but not limited to, the issuance by a court of competent jurisdiction of appropriate |
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| 186 | 186 | | 166orders to restrain or prevent the distribution of visual material in violation of this subsection. |
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| 187 | 187 | | 167 (5) Visual material that is part of any court record arising from a prosecution under this |
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| 188 | 188 | | 168subsection shall not be open to public inspection and, unless otherwise ordered in writing by the |
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| 189 | 189 | | 169court, shall only be made available for inspection by court personnel to a district attorney, a |
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| 190 | 190 | | 170defendant’s attorney, a defendant or a victim connected to such prosecution; provided, however, |
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| 191 | 191 | | 171that this paragraph shall not prohibit disclosure, inspection or other use of the visual material in |
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| 192 | 192 | | 172the underlying prosecution or any related court proceeding in accordance with applicable |
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| 193 | 193 | | 173evidentiary and procedural rules or a court order. |
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| 194 | 194 | | 174 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity |
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| 195 | 195 | | 175or sexual conduct that is voluntary or consensual and occurring (A) in a commercial setting, or |
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| 196 | 196 | | 176(B) in a place where a person does not have a reasonable expectation of privacy; (ii) distribution |
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| 197 | 197 | | 177made in the public interest, including the reporting of unlawful conduct; (iii) lawful and common |
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| 198 | 198 | | 178practices of law enforcement, criminal reporting, corrections, legal proceedings or medical |
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| 199 | 199 | | 179treatment, including telemedicine; (iv) distribution of visual material that constitutes a matter of |
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| 200 | 200 | | 180public concern; (v) interactive computer services as defined in 47 U.S.C. 230(f)(2) for content |
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| 201 | 201 | | 181solely provided by another person; or (vi) information services or telecommunications services |
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| 202 | 202 | | 182as defined in 47 U.S.C. 153 for content solely provided by another person. |
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| 203 | 203 | | 183 (c) Whoever, after having been convicted of an offense under this section, commits a |
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| 204 | 204 | | 184second or subsequent offense or whoever commits an offense under this section after having |
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| 205 | 205 | | 185previously been convicted of a violation of section 43, shall be punished by imprisonment in a 10 of 12 |
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| 206 | 206 | | 186house of correction for not more than 2½ years or in a state prison for not more than 10 years, by |
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| 207 | 207 | | 187a fine of not more than $15,000 or by both such fine and imprisonment. |
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| 208 | 208 | | 188 SECTION 7. Chapter 272 of the General Laws is hereby amended by inserting after |
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| 209 | 209 | | 189section 29C the following section:- |
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| 210 | 210 | | 190 Section 29D. (a) Whoever, while under the age of criminal majority, possesses, purchases |
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| 211 | 211 | | 191or disseminates, including by uploading to an internet website, any visual material, as defined in |
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| 212 | 212 | | 192section 31, in violation of section 29B or 29C may be punished in accordance with section 58 of |
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| 213 | 213 | | 193chapter 119. |
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| 214 | 214 | | 194 (b) For the purposes of this section, knowingly disseminating visual material by: (i) |
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| 215 | 215 | | 195reporting the matter to a law enforcement agency, to the department of elementary and secondary |
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| 216 | 216 | | 196education or to a parent, foster parent, guardian, teacher, principal or other relevant school |
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| 217 | 217 | | 197personnel; or (ii) affording a law enforcement agency, the department of elementary and |
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| 218 | 218 | | 198secondary education or a parent, foster parent, guardian, teacher, principal or other relevant |
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| 219 | 219 | | 199school personnel access to the visual material for purposes within the agency’s, department’s or |
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| 220 | 220 | | 200person’s position, authority or capacity shall not constitute dissemination in violation of this |
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| 221 | 221 | | 201section. |
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| 222 | 222 | | 202 (c) A person who has been adjudicated under this section shall not be required to register |
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| 223 | 223 | | 203with the sex offender registry board and no data relating to such adjudication shall be transmitted |
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| 224 | 224 | | 204to the board pursuant to section 178E of chapter 6. A person who has been adjudicated under this |
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| 225 | 225 | | 205section shall not be subject to section 100J of chapter 276 and shall be eligible for expungement |
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| 226 | 226 | | 206of any criminal records of such adjudication. 11 of 12 |
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| 227 | 227 | | 207 (d) The juvenile court department shall have exclusive jurisdiction of proceedings under |
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| 228 | 228 | | 208this section. |
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| 229 | 229 | | 209 (e) It shall be an affirmative defense for any crime alleged to have been committed by a |
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| 230 | 230 | | 210juvenile under section 29A, 29B, 29C or this section that: (i) the visual material portrays no |
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| 231 | 231 | | 211person other than the juvenile; or (ii)(A) the juvenile was under 18 years of age at the time of the |
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| 232 | 232 | | 212alleged offense; (B) the visual material portrays only an individual age 16 or older; (C) the visual |
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| 233 | 233 | | 213material was knowingly and voluntarily created and provided to the juvenile by the individual in |
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| 234 | 234 | | 214the image; and (D) the juvenile has not provided or made available the material to another person |
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| 235 | 235 | | 215except the individual depicted who originally sent the material to the juvenile. |
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| 236 | 236 | | 216 (f) Nothing in this section shall prohibit a prosecution for disorderly conduct, public |
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| 237 | 237 | | 217indecency, child pornography or any other applicable provision of law. |
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| 238 | 238 | | 218 (g) The Massachusetts District Attorneys Association, with assistance from the 11 district |
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| 239 | 239 | | 219attorneys’ offices, shall annually, not later than February 15, report on its actions under section |
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| 240 | 240 | | 22029D of chapter 272 of the General Laws to the clerks of the house of representatives and senate |
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| 241 | 241 | | 221and the chairs of the joint committee on the judiciary. The report shall include, for each office: |
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| 242 | 242 | | 222(i) the number of cases under section 29D referred to that office; (ii) the number of arraignments |
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| 243 | 243 | | 223conducted for an alleged violation of section 29D; (iii) the number of cases under section 29D |
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| 244 | 244 | | 224where no action was taken; (iv) the number of cases under section 29D where the alleged |
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| 245 | 245 | | 225offender was directed to enter into the educational diversion program developed under section 15 |
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| 246 | 246 | | 226of chapter 18C; (v) the number of cases under section 29D in which the district attorney objected |
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| 247 | 247 | | 227to diversion pursuant to section 54B of chapter 119 and, of those, the number of cases in which |
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| 248 | 248 | | 228the court proceeded with diversion over the district attorney’s objection; (vi) the number of 12 of 12 |
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| 249 | 249 | | 229arraignments conducted for an alleged violation of section 29D after the alleged offender failed |
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| 250 | 250 | | 230to complete the educational diversion program developed under section 15 of chapter 18C; and |
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| 251 | 251 | | 231(vii) to the extent feasible, the age, gender identity and race of each person diverted or arraigned |
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| 252 | 252 | | 232for alleged violations of section 29D; provided, however, that all personally identifiable |
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| 253 | 253 | | 233information published in said report shall be deidentified. |
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| 254 | 254 | | 234 SECTION 8. Section 63 of chapter 277 of the General Laws, as appearing in the 2022 |
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| 255 | 255 | | 235Official Edition, is hereby amended by striking out, in line 13, the word “sections” and inserting |
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| 256 | 256 | | 236in place thereof the following words:- clause (iii) of subsection (b) of section 13A, sections |
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| 257 | 257 | | 23713M,. |
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