HOUSE DOCKET, NO. 3080        FILED ON: 2/18/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1765

The Commonwealth of Massachusetts

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PRESENTED BY:

Paul W. Mark

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act strengthening the upskirting law.

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PETITION OF:

HOUSE DOCKET, NO. 3080        FILED ON: 2/18/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1765

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act strengthening the upskirting law.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 272 of the General Laws is hereby amended by striking section 105 in its entirety and replacing it with the following:-

Section 105 (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Electronically surveils” or “electronically surveilled”, to view, obtain, or record a person’s visual image by the use or aid of a camera, cellular or other wireless communications device, computer, television, or other electronic device.

“Nude”, unclothed, such that one or more sexual or other intimate parts as defined herein is exposed.

“Partially nude”, partially unclothed, such that one or more sexual or other intimate parts as defined herein is exposed.

“Sexual or other intimate parts”, human genitals, buttocks, pubic area, or female nipples and areola, or any part thereof.

(b) (i) Whoever willfully photographs, videotapes, or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped, or electronically surveilled, or

(ii)  Whoever willfully photographs, videotapes, or electronically surveils the sexual or other intimate parts of another person, whether or not such parts are clothed, with the intent to secretly conduct or hide such activity, and with the prurient intent to focus on or otherwise invade the privacy of the person’s sexual or other intimate parts, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both, if the victim is 18 years or older; or by imprisonment in the house of correction for not more than 2 1/2 years, or by imprisonment in the state prison for not more than 5 years, or by a fine of not of not more than $10,000, or by both such fine and imprisonment, if the victim is less than 18 years of age or is otherwise incompetent. The actual knowledge and consent of the person or the parent or guardian of the child or incompetent person so photographed, videotaped, or electronically surveilled shall be an affirmative defense to the offense stated herein.

(iii) Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child's clothing to view or attempt to view the child's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 21/2 years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(c) Whoever willfully disseminates the visual image of another person, with knowledge that such visual image was unlawfully obtained in violation of the first and second paragraphs of subsection (b) and without consent of the person so depicted, shall be punished by imprisonment in the house of correction for not more than 21/2 years or in the state prison for not more than 5 years or by a fine of not more than $10,000, or by both such fine and imprisonment.

Whoever willfully disseminates the visual image of the sexual or other intimate parts of a child under the age of 18, with knowledge that such visual image was unlawfully obtained in violation of the third paragraph of subsection (b) shall be punished by imprisonment in the house of correction for not more than 21/2 years or in the state prison for not more than 10 years or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) This section shall not apply to a merchant that electronically surveils a customer changing room, provided that signage warning customers of the merchant's surveillance activity is conspicuously posted at all entrances and in the interior of any changing room electronically surveilled.

(e) This section shall not apply to a law enforcement officer acting within the scope of the officer's authority under applicable law, or by an order or warrant issued by a court.

(f) A sheriff, deputy sheriff or police officer may arrest without a warrant, a person whom he has probable cause to believe has violated this section.

(g) A photograph, videotape or other recorded visual image, depicting a person who is nude or partially nude or which depicts a person's sexual or other intimate parts that is part of any court record arising from a prosecution under this section, shall not be open to public inspection and shall only be made available by court personnel to a law enforcement officer, prosecuting attorney, defendant's attorney, defendant, or victim connected to such prosecution for inspection, unless otherwise ordered by the court.

(h) In a prosecution under this section, a justice of the superior court or district court may issue appropriate orders to restrain or prevent the unlawful dissemination of a person's visual image in violation of this section.