Section 1: Chapter 272 of the General Laws is amended by adding Paragraphs (a) through (f) as a new Section 29D.
(a) "Indecent visual depiction" means a depiction or portrayal in any pose, posture, or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the person.
(b) Any person who is less than eighteen years of age that uses a telecommunications or other device to knowingly transmit or distribute to another person an indecent visual depiction, including but not limited to, a photograph, media, or a text message with attached media, depicting another person who is less than eighteen years of age in a state of sexual activity, or a state of indecent visual nudity, or any person who is less than eighteen years of age, who knowingly obtains an image in violation of this section and distributes the image or images by means of uploading same on an Internet website, shall be punished as follows:
(1) For a first offense subject to the court's discretion, and when the prosecuting attorney and the defendant have agreed, if the defendant's violation did not involve the distribution of such visual medium for the purpose of harassing, intimidating, or embarrassing the minor depicted or with the intent to injure the reputation of the other person or with the intent to cause emotional distress to the other person or any commercial purpose, said minor commits a noncriminal offense and is subject to completion of a diversion program developed in accordance with paragraph (e) of this section. For a second offense, said minor commits a noncriminal offense and is subject to a civil fine of two hundred fifty dollars and re-completion of a diversion program in accordance with paragraph (e) of this section. The civil fine is subject to all applicable court costs, assessments, and surcharges.
(2) In any situation in the court’s discretion, if the defendant’s violation involved the distribution of such visual medium to another person and was for the purpose of harassing, intimidating, or embarrassing the minor depicted or with the intent to injure the reputation of the other person or with the intent to cause emotional distress to the other person or any commercial purpose, is guilty of a misdemeanor, and upon conviction, being adjudicated in need of supervision, or entry of a plea of guilty or nolo contendere, shall pay a fine of one thousand dollars; shall perform community service; and at the expense of the convicted minor’s parents may be required to attend counseling or other supportive services to address the acts that led to the need for supervision. The minor is still subject to counseling if his or her parents are unable to pay for such services. The civil fine is subject to all applicable court costs, assessments, and surcharges.
(c) A person less than eighteen years of age does not knowingly transmit or distribute the material in violation of this section by reporting the matter to a law enforcement agency, teacher, principal, or parent, or by affording a law enforcement agency, teacher, principal, or parent access to the image.
(d) A person who has been convicted of a violation of this section shall not be required to register with the sex offender registry and any record of such violation from the Board of Probation is therefore expunged.
(e) The Massachusetts Aggression Reduction Center (MARC) at Bridgewater State University shall develop and create a comprehensive education program designed to provide teenagers with information about the legal consequences of and penalties for transmitting indecent visual depictions known as “sexting” or posting indecent visual depictions online, including the applicable federal and state statutes; the non-legal consequences of sexting or posting such pictures, including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities; how the unique characteristics of cyberspace and the Internet can produce long-term and unforeseen consequences for sexting and posting such photographs; and the connection between bullying and cyber-bulling and juveniles sexting or posting sexual images. The said education program shall be used as part of any diversion program required under this section and shall be made available to school districts for use in educational programs on the topic.
(f) Jurisdiction to hear a violation of this section is vested exclusively in the Juvenile Court.
Section 2: It shall be an affirmative defense for any crime alleged under G.L. c. 272, § 29A, 29B, 29C, or this section that (a) the image portrays no person other than the defendant; or (b) the defendant was less than nineteen, the image portrays only a teen older than fifteen and was knowingly and voluntarily created and provided to the defendant by the teen in the image, and the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant.
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