Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1012 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 724 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1012
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	John F. Keenan
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to transmitting indecent visual depictions by teens and the unlawful distribution
13	13	of explicit images.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :John F. KeenanNorfolk and PlymouthJames K. Hawkins2nd Bristol2/7/2023Walter F. TimiltyNorfolk, Plymouth and Bristol2/8/2023Kay Khan11th Middlesex2/9/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/9/2023Michelle M. DuBois10th Plymouth2/13/2023Steven S. Howitt4th Bristol2/17/2023Anne M. GobiWorcester and Hampshire2/21/2023Michael O. MooreSecond Worcester2/23/2023Paul R. FeeneyBristol and Norfolk3/3/2023 1 of 11
17	17	SENATE DOCKET, NO. 724 FILED ON: 1/18/2023
18	18	SENATE . . . . . . . . . . . . . . No. 1012
19	19	By Mr. Keenan, a petition (accompanied by bill, Senate, No. 1012) of John F. Keenan, James K.
20	20	Hawkins, Walter F. Timilty, Kay Khan and other members of the General Court for legislation
21	21	relative to transmit indecent visual depictions by teens and the unlawful distribution of explicit
22	22	images. The Judiciary.
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to transmitting indecent visual depictions by teens and the unlawful distribution
29	29	of explicit images.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. Chapter 18C of the General Laws is hereby amended by adding the
33	33	2following section:-
34	34	3 Section 15. The office of the child advocate, in consultation with the department of
35	35	4elementary and secondary education, the department of youth services and the attorney general,
36	36	5shall develop and implement a comprehensive educational diversion program. The program shall
37	37	6be designed to provide adolescents with information about: (i) the legal consequences of and the
38	38	7penalties for transmitting visual material in violation of section 43A of chapter 265 or section
39	39	829D of chapter 272, also known as “sexting”, or posting such visual material online, including an
40	40	9explanation of other applicable federal and state law; (ii) the non-legal consequences of sexting
41	41	10or posting such visual material online, including, but not limited to, the effect on relationships,
42	42	11loss of educational and employment opportunities and being barred or removed from school 2 of 11
43	43	12programs and extracurricular activities; (iii) how the unique characteristics of the internet can
44	44	13produce long-term and unforeseen consequences for sexting and posting such visual material
45	45	14online, including the impact on healthy relationships and the risk of trafficking; and (iv) the
46	46	15connection between bullying and cyber-bulling, sexual assault and dating violence and juveniles
47	47	16sexting or posting such visual material online. The child advocate shall consult the best available
48	48	17research on effective educational diversion programs, including programs on sexting, in
49	49	18designing the curriculum and shall regularly review the program design and make updates to
50	50	19improve efficacy. The child advocate shall solicit public comment prior to the development of
51	51	20the curriculum or the implementation of any significant changes to the curriculum or program.
52	52	21The child advocate may establish the program, or any aspect of the program, in partnership with
53	53	22a state institution, state agency or a public or private institution of higher education. The
54	54	23educational diversion program shall be used as part of any diversion program required pursuant
55	55	24to section 39N of chapter 119 and shall be made available to school districts for use in
56	56	25educational programs on the topic. Law enforcement, clerk magistrates and district attorneys
57	57	26may refer youth alleged to be a juvenile delinquent by reason of violating section 29B, 29C or
58	58	2729D of chapter 272 to the educational diversion program.
59	59	28 SECTION 2. Chapter 71 of the General Laws is hereby amended by adding the following
60	60	29section:-
61	61	30 Section 99. The department shall encourage school districts to: (i) implement instruction
62	62	31in media literacy skills at all grade levels, including life skills programming, and in any of the
63	63	32core subjects under section 1D of chapter 69 or other subjects, to equip students with the
64	64	33knowledge and skills for accessing, analyzing, evaluating and creating all types of media; and (ii)
65	65	34use the content of the educational diversion program established pursuant to section 15 of 3 of 11
66	66	35chapter 18C for educational programs on the topic of transmitting visual material in violation of
67	67	36section 43A of chapter 265 or section 29D of chapter 272 or posting such visual material online.
68	68	37 SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after
69	69	38section 39M the following section:-
70	70	39 Section 39N. (a) If a child is alleged to be a juvenile delinquent by reason of violating
71	71	40sections 29B, 29C or 29D of chapter 272, the court shall divert the child from further court
72	72	41processing prior to arraignment unless the court finds that failure to proceed with the arraignment
73	73	42would result in the substantial likelihood of serious harm to a member of the community. If
74	74	43arraignment has already occurred, the court may, if the child consents, stay the proceedings and
75	75	44divert the child in the same manner as a child diverted prior to arraignment under this section.
76	76	45The court shall direct a child diverted under this section to enter and complete the educational
77	77	46diversion program established pursuant to section 15 of chapter 18C.
78	78	47 (b) A child who is alleged to be a juvenile delinquent by reason of violating sections 29B,
79	79	4829C or 29D of chapter 272 may, upon the request of the child, undergo an assessment prior to
80	80	49arraignment to enable the judge to consider the suitability of the child for diversion to the
81	81	50educational diversion program established pursuant to section 15 of chapter 18C. If a child
82	82	51chooses to request a continuance for the purpose of such an assessment, the child shall notify the
83	83	52judge prior to arraignment. Upon receipt of such notification, the judge may grant a 14–day
84	84	53continuance. The department of probation may conduct such assessment prior to arraignment to
85	85	54assist the judge in making that decision. If the judge determines it is appropriate, a determination
86	86	55of eligibility by the personnel of the educational diversion program may substitute for an
87	87	56assessment. If a case is continued pursuant to this subsection, the child shall not be arraigned, 4 of 11
88	88	57and an entry shall not be made into the criminal offender record information system, until a
89	89	58judge issues an order to resume the ordinary processing of a delinquency proceeding. A judge
90	90	59may order diversion without first ordering an assessment in any case in which the court finds that
91	91	60sufficient information is available without an assessment; provided, however, that the judge shall
92	92	61provide an opportunity for both the commonwealth and counsel for the child to be heard
93	93	62regarding diversion of the child.
94	94	63 (c)(1) After the completion of the assessment, the probation officer or the director of the
95	95	64educational diversion program established pursuant to section 15 of chapter 18C shall submit to
96	96	65the court and to counsel for the child a recommendation as to whether the child would benefit
97	97	66from diversion. Upon receipt of the recommendation, the judge shall provide an opportunity for
98	98	67both the commonwealth and counsel for the child to be heard regarding diversion of the child.
99	99	68The judge shall then make a final determination as to the eligibility of the child for diversion.
100	100	69The proceedings of a child who is found eligible for diversion shall be stayed for 90 days unless
101	101	70the judge determines that the interest of justice would best be served by a lesser period of time or
102	102	71unless extended under subsection (f).
103	103	72 (2) A stay of proceedings shall not be granted under this section unless the child consents
104	104	73in writing to the terms and conditions of the stay of proceedings and, after consultation with legal
105	105	74counsel, knowingly executes a waiver of the child's right to a speedy trial on a form approved by
106	106	75the chief justice of the juvenile court department of the trial court of the commonwealth. Consent
107	107	76shall be given only upon the advice of counsel.
108	108	77 (3) The following shall not be admissible against the child in any proceedings: (i) a
109	109	78request for assessment; (ii) a decision by the child not to enter the educational diversion 5 of 11
110	110	79program; (iii) a determination by the department of probation or by the educational diversion
111	111	80program that the child would not benefit from diversion; (iv) any statement made by the child or
112	112	81the child's family during the course of assessment; and (v) circumstances regarding the child’s
113	113	82failure to complete the educational diversion program. Any consent by a child to a stay of
114	114	83proceedings or any act done or statement made in fulfillment of the terms and conditions of a
115	115	84stay of proceedings shall not be admissible as an admission, implied or otherwise, against the
116	116	85child if the stay of proceedings was terminated and proceedings were resumed on the original
117	117	86complaint. A statement or other disclosure or a record thereof made by a child during the course
118	118	87of an assessment or during the stay of proceedings shall not be disclosed at any time to a
119	119	88commonwealth or other law enforcement officer in connection with the investigation or
120	120	89prosecution of any charges against the child or a codefendant.
121	121	90 (4) If a child is found eligible for diversion pursuant to this section, the child shall not be
122	122	91arraigned and an entry shall not be made into the criminal offender record information system
123	123	92unless a judge issues an order to resume the ordinary processing of a delinquency proceeding. If
124	124	93a child is found eligible pursuant to this section, the eligibility shall not be considered an
125	125	94issuance of a criminal complaint for the purposes of section 37H1/2 of chapter 71.
126	126	95 (d) A district attorney may divert any child for whom there is probable cause to issue a
127	127	96complaint, either before or after the assessment procedure set forth in subsection (b), with or
128	128	97without the permission of the court. A district attorney who diverts a case pursuant to this
129	129	98subsection may request a report from the educational diversion program established pursuant to
130	130	99section 15 of chapter 18C regarding the child's status in and completion of the program. 6 of 11
131	131	100 (e) If during the stay of proceedings a child is charged with a subsequent offense under
132	132	101sections 29B, 29C or 29D of chapter 272, a judge in the court that entered the stay of
133	133	102proceedings may issue such process as is necessary to bring the child before the court. When the
134	134	103child is brought before the court, the judge shall afford the child an opportunity to be heard. If
135	135	104the judge finds probable cause to believe that the child has committed such a subsequent offense,
136	136	105the judge may order that the stay of proceedings be terminated and that the commonwealth be
137	137	106permitted to proceed on the original complaint as provided by law.
138	138	107 (f)(1) Upon the expiration of the initial 90–day stay of proceedings, the probation officer
139	139	108or the director of the educational diversion program, established pursuant to section 15 of chapter
140	140	10918C, shall submit to the court a report indicating the successful completion of diversion by the
141	141	110child or recommending an extension of the stay of proceedings for not more than an additional
142	142	11190 days so that the child may complete the diversion program successfully.
143	143	112 (2) If the probation officer or the director of the educational diversion program,
144	144	113established pursuant to section 15 of chapter 18C, indicates the successful completion of
145	145	114diversion by a child, the judge shall dismiss the original complaint pending against the child. If
146	146	115the report recommends an extension of the stay of proceedings, the judge may, on the basis of
147	147	116the report and any other relevant evidence, take such action as the judge deems appropriate,
148	148	117including the dismissal of the complaint, the granting of an extension of the stay of proceedings
149	149	118or the resumption of proceedings.
150	150	119 (3) If the conditions of diversion have not been met, the child's attorney shall be notified
151	151	120prior to the termination of the child from diversion and the judge may grant an extension to the 7 of 11
152	152	121stay of proceedings if the child provides good cause for failing to comply with the conditions of
153	153	122diversion.
154	154	123 (4) If the judge dismisses a complaint under this subsection, the court shall, unless the
155	155	124child objects, enter an order directing expungement of any records of the complaint and related
156	156	125proceedings maintained by the clerk, the court, the department of criminal justice information
157	157	126services and the court activity record index.
158	158	127 SECTION 4. Section 43A of chapter 265 of the General Laws, as appearing in the 2020
159	159	128Official Edition, is hereby amended by striking out, in line 7, the figure “$1,000” and inserting in
160	160	129place thereof the following figure:- $5,000.
161	161	130 SECTION 5. Said section 43A of said chapter 265, as so appearing, is hereby further
162	162	131amended by striking out subsection (b) and inserting in place thereof the following 2
163	163	132subsections:-
164	164	133 (b)(1) As used in this subsection the following words shall have the following meanings
165	165	134unless the context clearly requires otherwise:
166	166	135 “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast or
167	167	136engage in any other form of transmission, electronic or otherwise.
168	168	137 “Identifiable”, identifiable from the visual material itself or information offered in
169	169	138connection with the visual material.
170	170	139 “Partially nude”, the exposure of fully uncovered buttocks or all or part of the human
171	171	140genitals or the female nipple-areolar complex. 8 of 11
172	172	141 “Publish”, (i) disseminate with the intent that an image be made available by any means
173	173	142to any person or other legal entity; (ii) disseminate with the intent that an image be sold by
174	174	143another person or legal entity; (iii) post, present, display, exhibit, circulate, advertise or allow
175	175	144access by any means, so as to make an image available to the public; or (iii) disseminate with the
176	176	145intent that an image be posted, presented, displayed, exhibited, circulated, advertised or made
177	177	146accessible by any means and to make the image available to the public.
178	178	147 “Visual material”, any photograph, film, video or digital image or recording, whether
179	179	148produced by electronic, mechanical or other means or any part, representation or reproduction
180	180	149thereof.
181	181	150 (2) Whoever knowingly distributes visual material depicting another person, either
182	182	151identifiable in the visual material or identified by the distributing person, who is nude, partially
183	183	152nude or engaged in sexual conduct, when the distribution causes physical or economic injury to
184	184	153the person depicted in the visual material or causes the person depicted in the visual material to
185	185	154suffer substantial emotional distress, and does so with the intent to harm, harass, intimidate,
186	186	155threaten, coerce or cause substantial emotional distress and with reckless disregard for the
187	187	156depicted person’s lack of consent to the distribution of the visual material and reasonable
188	188	157expectation that the visual material would remain private, imprisonment in a house of correction
189	189	158for not more than 2½ years, by a fine of not more than $10,000 or by both such fine and
190	190	159imprisonment.
191	191	160 (3) For the purposes of this subsection, a person’s consent to the creation of visual
192	192	161material shall not constitute consent to the distribution of the visual material. 9 of 11
193	193	162 (4) This subsection shall not preclude other remedies available at law or in equity,
194	194	163including, but not limited to, the issuance by a court with proper jurisdiction of appropriate
195	195	164orders to restrain or prevent the distribution of visual material in violation of this subsection.
196	196	165 (5) Visual material that is part of any court record arising from a prosecution under this
197	197	166subsection shall not be open to public inspection and, unless otherwise ordered in writing by the
198	198	167court or required by law, shall only be made available for inspection by court personnel to a
199	199	168prosecuting attorney, a defendant’s attorney or the attorney’s agent, a defendant or a victim
200	200	169connected to such prosecution; provided, however, that this paragraph shall not prohibit
201	201	170disclosure, inspection or other use of the visual material in the underlying prosecution or any
202	202	171related court proceeding in accordance with applicable evidentiary and procedural rules or court
203	203	172orders.
204	204	173 (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity
205	205	174or sexual conduct that is voluntary or consensual and occurring (A) in a commercial setting or
206	206	175for commercial gain; or (B) in a place where a person does not have a reasonable expectation of
207	207	176privacy; (ii) distribution made in the public interest, including the reporting of unlawful conduct;
208	208	177(iii) criminal reporting, corrections, legal proceedings or medical treatment, including
209	209	178telemedicine; (iv) interactive computer services, as defined in 47 U.S.C. 230(f)(2), for content
210	210	179solely provided by another person; or (v) information services or telecommunications services,
211	211	180as defined in 47 U.S.C. 153, for content solely provided by another person.
212	212	181 (c) Whoever, after having been convicted of an offense under this section, commits a
213	213	182second or subsequent offense under this section, or whoever, after having been convicted of a
214	214	183violation of section 43, commits an offense under this section shall be punished by imprisonment 10 of 11
215	215	184in a house of correction for not more than 2½ years or in a state prison for not more than 10
216	216	185years, by a fine of not more than $15,000 or by both such fine and imprisonment.
217	217	186 SECTION 6. Chapter 272 of the General Laws is hereby amended by inserting after
218	218	187section 29C the following section:-
219	219	188 Section 29D. (a) Whoever, while under the age of criminal majority, possesses or
220	220	189disseminates to another person any visual material in violation of section 29B or section 29C or
221	221	190uploads such visual material of another person to an internet website may be punished in
222	222	191accordance with section 58 of chapter 119.
223	223	192 (b) Knowingly disseminating visual material by reporting the matter to a law enforcement
224	224	193agency, parent, foster parent, guardian or teacher, principal or other relevant school personnel, or
225	225	194by affording a law enforcement agency, parent, foster parent, guardian or teacher, principal or
226	226	195other relevant school personnel access to the visual material for purposes within the agency’s or
227	227	196person’s professional capacity shall not constitute dissemination for the purposes of this section.
228	228	197 (c) A person who has been adjudicated under this section shall not be required to register
229	229	198with the sex offender registry board and no data relating to such adjudication shall be transmitted
230	230	199to the board pursuant to section 178E of chapter 6; provided further, that said adjudication shall
231	231	200be eligible for expungement and shall not be considered ineligible under section 100J of chapter
232	232	201276.
233	233	202 (d) The juvenile court department of the trial court of the commonwealth shall have
234	234	203exclusive jurisdiction of proceedings under this section. 11 of 11
235	235	204 (e) It shall be an affirmative defense for any crime alleged under section 29A, section
236	236	20529B, section 29C or this section that: (i) the visual material portrays no person other than the
237	237	206defendant; or (ii) the defendant was under the age of criminal majority, the visual material
238	238	207portrays only an individual age 16 or older and was knowingly and voluntarily created and
239	239	208provided to the defendant by the individual in the image and the defendant has not provided or
240	240	209made available the material to another person except the individual depicted who originally sent
241	241	210the material to the defendant.
242	242	211 SECTION 7. This act shall take effect six months after enactment.