Amendment #1 to H.4115

HOUSE . . . . . . . No. 4241

The Commonwealth of Massachusetts
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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

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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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 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 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 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;

(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;

(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.

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.

“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, 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 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.

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,.