Bill Summary – FastDemocracy

HOUSE . . . . . . . No. 4241
           The Commonwealth of Massachusetts
                    ______________________________________
                    HOUSE OF REPRESENTATIVES, January 9, 2024.
    The committee on Ways and Means, to whom was referred the Bill to
prevent abuse and exploitation (House, No. 4115), reports recommending
that the same ought to pass with an amendment substituting therefor the
accompanying bill (House, No. 4241).
                             For the committee,
                                                  AARON MICHLEWITZ.
                                                      FILED ON: 1/9/2024
      HOUSE . . . . . . . . . . . . . . . No. 4241
                                The Commonwealth of Massachusetts
                                                      _______________
                                    In the One Hundred and Ninety-Third General Court
                                                       (2023-2024)
                                                      _______________
     An Act to prevent abuse and exploitation.
              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
     of the same, as follows:
         SECTION 1. Chapter 12 of the General Laws is hereby amended by adding the following
 section:-
         Section 36. (a) The attorney general, in consultation with the department of elementary
 and secondary education, the department of youth services and the Massachusetts District
 Attorneys Association, shall develop and implement a comprehensive educational diversion
 program about the activity commonly known as “sexting”. The program shall be designed to
 provide adolescents with information about: (i) the legal consequences of, and penalties for,
 possessing or disseminating visual material in violation of section 29D of chapter 272 and other
 applicable federal and state law; (ii) the non-legal consequences of possessing or disseminating
 sexual images, including, but not limited to, the effect on relationships, loss of educational and
 employment opportunities and removal, exclusion or expulsion from school programs and
 extracurricular activities; (iii) how the internet may produce long-term and unforeseen
 consequences for possessing or disseminating sexual images online, including the health of
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 relationships and risk of trafficking; and (iv) the connection between adolescents possessing or
 disseminating sexual images and sexual assault, dating violence and bullying.
        (b) In designing the curriculum, the attorney general shall research effective educational
 diversion programs, including programs in other states and programs on sexting; provided, that
 the attorney general shall annually review the program design and curriculum and make updates
 as needed to improve efficacy.
        (c) The educational diversion program shall be used for any diversion program required
 pursuant to section 54B of chapter 119; provided, that the district attorney or court having
 jurisdiction may, where appropriate, refer a delinquent child or alleged delinquent child to said
 educational diversion program for violations or alleged violations of other laws if the district
 attorney or court deems said educational diversion program may be beneficial to a delinquent
 child or alleged delinquent child.
        (d) Educational material from the educational diversion program shall be made available
 to school districts for use in educational programs on the topic of possessing or disseminating
 sexual images.
        SECTION 2. Chapter 71 of the General Laws is hereby amended by adding the following
 section:-
        Section 100. The department shall encourage school districts to implement instruction in
 media literacy skills at all grade levels, and in any of the core subjects under section 1D of
 chapter 69, life skills programming or other subjects, to equip students with the knowledge and
 skills for accessing, analyzing, evaluating and creating all types of media. The instruction shall
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 use content from the educational diversion program established pursuant to section 36 of chapter
 12.
         SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after
 section 54A the following section:-
         Section 54B. (a) If a child is alleged to be a delinquent child by reason of violating
 section 29B, 29C or 29D of chapter 272, the court shall, prior to arraignment, indefinitely stay
 arraignment and direct that the child enter and complete the educational diversion program
 established in section 36 of chapter 12; provided, however, that the district attorney may object
 in writing to the stay of arraignment. If the district attorney so objects, the court shall consider
 the district attorney’s objection and shall make a determination on whether to direct the child to
 enter and complete said educational diversion program. If the court finds, on its own motion or at
 the request of the district attorney, that the child has failed to complete the educational diversion
 program, the court shall bring the case forward, arraign the child and restore the delinquency
 complaint to the docket for further proceedings.
         (b) If a child is alleged to be a delinquent child by reason of violating section 29B, 29C or
 29D of chapter 272 and arraignment has already occurred, the court shall place the child on
 pretrial probation pursuant to section 87 of chapter 276. The district attorney may object in
 writing to pretrial probation. If the district attorney so objects, the court shall consider the district
 attorney’s objections in its decision to place the child on pretrial probation. The conditions of
 such probation shall include, but shall not be limited to, completion of the educational diversion
 program established in section 36 of chapter 12. If the court finds, on its own motion or at the
 request of the district attorney, that the child has failed to comply with the conditions of
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 probation, the court shall restore the delinquency complaint to the docket for trial or further
 proceedings.
        SECTION 4. Section 1 of chapter 209A of the General Laws, as appearing in the 2022
 Official Edition, is hereby amended by striking out the definition of “Abuse” and inserting in
 place thereof the following 2 definitions:-
        “Abuse”, the occurrence of 1 or more of the following acts between family or household
 members:
        (a) attempting to cause or causing physical harm;
        (b) placing another in fear of imminent serious physical harm;
        (c) causing another to engage involuntarily in sexual relations by force, threat or duress;
        (d) coercive control.
        “Coercive control”, either:
        (a) a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce
 or compel compliance of a family or household member that causes the family or household
 member to fear physical harm or have a reduced sense of physical safety or autonomy, including,
 but not limited to:
        (i) isolating the family or household member from friends, relatives or other sources of
 support;
        (ii) depriving the family or household member of basic needs;
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        (iii) controlling, regulating or monitoring the family or household member’s activities,
 communications, movements, finances, economic resources or access to services, including
 through technological means;
        (iv) compelling a family or household member to abstain from or engage in a specific
 behavior or activity, including engaging in criminal activity;
        (v) threatening to harm a child or relative of the family or household member;
        (vi) threatening to commit cruelty or abuse to an animal connected to the family or
 household member;
        (vii) intentionally damaging property belonging to the family or household member;
        (viii) threatening to publish sensitive personal information relating to the family or
 household member, including sexually explicit images; or
        (ix) using repeated court actions found by a court not to be warranted by existing law or
 good faith argument; or
        (b) a single act intended to threaten, intimidate, harass, isolate, control, coerce or compel
 compliance of a family or household member that causes the family or household member to fear
 physical harm or have a reduced sense of physical safety or autonomy, including, but not limited
 to:
        (i) harming a child or relative of the family or household member;
        (ii) committing abuse to an animal connected to the family or household member; or
        (iii) publishing sexually explicit images of the family or household member.
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         SECTION 5. Section 43A of chapter 265 of the General Laws, as so appearing, is hereby
 amended by striking out, in line 7, the figure “$1,000” and inserting in place thereof the
 following figure:- $5,000.
         SECTION 6. Said section 43A of said chapter 265, as so appearing, is hereby further
 amended by striking out subsection (b) and inserting in place thereof the following 2
 subsections:-
         (b)(1) As used in this subsection, the following words shall, unless the context clearly
 requires otherwise, have the following meanings:
         “Distribute”, give, sell, transfer, disseminate, publish, upload, circulate, broadcast or
 engage in any other form of transmission, electronic or otherwise.
         “Identifiable”, identifiable from the visual material itself or information offered in
 connection with the visual material.
         “Partially nude”, the exposure of fully uncovered buttocks, or all or part of the human
 genitals or the female nipple-areolar complex.
         “Publish”, (i) disseminate an image with the intent that it be made available by any means
 to any person or other legal entity; (ii) disseminate an image with the intent that it be sold by
 another person or legal entity; (iii) post, present, display, exhibit, circulate, advertise or allow
 access by any means, so as to make an image available to the public; or (iv) disseminate an
 image with the intent that it be posted, presented, displayed, exhibited, circulated, advertised or
 made accessible by any means, and to make such image available to the public.
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        “Visual material”, any photograph, film, video, or digital image or recording, whether
 produced by electronic, mechanical or other means or any part, representation or reproduction
 thereof.
        (2) Whoever knowingly distributes visual material depicting another person, either
 identifiable in the visual material or identified by the distributing person, who is nude, partially
 nude or engaged in sexual conduct, when the distribution causes physical or economic injury or
 substantial emotional distress to the person depicted in the visual material, and does so (i) with
 the intent to harm, harass, intimidate, threaten, coerce or cause substantial emotional distress, or
 (ii) with reckless disregard for the depicted person’s lack of consent to the distribution of the
 visual material and reasonable expectation that the visual material would remain private, shall be
 guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of
 correction for not more than 2½ years, by a fine of not more than $10,000, or by both such fine
 and imprisonment.
        (3) For purposes of this subsection, consent to the creation of visual material shall not
 constitute consent to the distribution of the visual material.
        (4) This subsection shall not preclude other remedies available at law or in equity,
 including, but not limited to, the issuance by a court with proper jurisdiction of appropriate
 orders to restrain or prevent the distribution of visual material in violation of this subsection.
        (5) Visual material that is part of any court record arising from a prosecution under this
 subsection shall not be open to public inspection and, unless otherwise ordered in writing by the
 court, shall only be made available for inspection by court personnel to a prosecuting attorney, a
 defendant’s attorney, a defendant or a victim connected to such prosecution; provided, however,
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 that this paragraph shall not prohibit disclosure, inspection or other use of the visual material in
 the underlying prosecution or any related court proceeding in accordance with applicable
 evidentiary and procedural rules or court order.
        (6) This subsection shall not apply to: (i) visual material involving nudity, partial nudity
 or sexual conduct that is voluntary or consensual and occurring (A) in a commercial setting, or
 (B) in a place where a person does not have a reasonable expectation of privacy; (ii) distribution
 made in the public interest, including the reporting of unlawful conduct; (iii) lawful and common
 practices of law enforcement, criminal reporting, corrections, legal proceedings or medical
 treatment, including telemedicine; (iv) distribution of visual material that constitutes a matter of
 public concern; (v) interactive computer services, as defined in 47 U.S.C. 230(f)(2), for content
 solely provided by another person; or (vi) information services or telecommunications services,
 as defined in 47 U.S.C. 153, for content solely provided by another person.
        (c) Whoever, after having been convicted of an offense under this section, commits a
 second or subsequent offense, or whoever commits an offense under this section having
 previously been convicted of a violation of section 43, shall be punished by imprisonment in a
 house of correction for not more than 2½ years or in a state prison for not more than 10 years, by
 a fine of not more than $15,000, or by both such fine and imprisonment.
        SECTION 7. Chapter 272 of the General Laws is hereby amended by inserting after
 section 29C the following section:-
        Section 29D. (a) Whoever possesses, purchases, disseminates to another person or
 uploads any visual material, as defined in section 31, to an internet website in violation of section
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 29B or section 29C while under the age of 18 may be punished by a commitment to the
 department of youth services.
         (b) For the purposes of this section, knowingly disseminating visual material by (i)
 reporting the matter to a law enforcement agency, parent, foster parent, guardian, teacher,
 principal or other relevant school personnel; or (ii) by affording a law enforcement agency,
 parent, foster parent, guardian, teacher, principal or other relevant school personnel access to the
 visual material shall not constitute dissemination in violation of this section.
         (c) A person who has been adjudicated under this section shall not be required to register
 with the sex offender registry board and no data relating to such adjudication shall be transmitted
 to the board pursuant to section 178E of chapter 6.
         (d) The juvenile court department shall have exclusive jurisdiction of proceedings under
 this section.
         (e) It shall be an affirmative defense for any crime alleged to have been committed by a
 juvenile under section 29A, 29B, 29C or this section that: (i) the visual material portrays no
 person other than the juvenile; or (ii)(A) the juvenile was under 18 years of age, (B) the visual
 material portrays only an individual age 16 or older, (C) the visual material was knowingly and
 voluntarily created and provided to the juvenile by the individual in the image, and (D) the
 juvenile has not provided or made available the material to another person except the individual
 depicted who originally sent the material to the juvenile.
         (f) Nothing in this section shall be construed to prohibit a prosecution for disorderly
 conduct, public indecency, child pornography or any other applicable provision of law.
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         SECTION 8. Section 63 of chapter 277 of the General Laws, as appearing in the 2022
 Official Edition, is hereby amended by striking out, in line 13, the word “sections” and inserting
 in place thereof the following words:- clause (iii) of subsection (b) of section 13A, sections
 13M,.
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Statutes affected: 
Bill Text: 209A-1, 265-43A, 277-63