House will vote on sexting, revenge porn bill
Baker first proposed policies five years ago
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FIVE YEARS AFTER Gov. Charlie Baker first proposed new laws addressing sexting and revenge porn, the Legislature is prepared to consider the legislation.
The House plans to vote Thursday on a bill that would address the unauthorized distribution of sexually explicit material. The bill has two major pieces. One would create a diversionary framework for minors caught sexting and the other would criminalize revenge porn.
“This is real survivor-centric bill that we’re putting out,” said Rep. Michael Day, a Stoneham Democrat who co-chairs the Judiciary Committee, arguing that the ban on revenge porn will help people who have been victimized reclaim their lives.
Experts say there has been a growing problem in recent years of teenagers “sexting,” sending explicit pictures of themselves and others via text. For example, a girl might send a naked picture of herself to a boy, who then distributes it to his friends.
Rep. Jeffrey Roy, a Franklin Democrat who sponsored in earlier version of the sexting bill, said this came up in Franklin when explicit images were circulated among around 60 high school students. “The police got involved, and under current law the police have only two options when teenagers are distributing these materials. The first option is to do nothing, and the second option is to charge them with felony possession of child pornography,” Roy said. In the end, nobody got charged. “There was frustration on the part of the police saying we want to do something, but we don’t want to charge them with a felony,” Roy said.
The bill released from the House Committee on Ways and Means on Wednesday, a version of which has been proposed by Baker each legislative session since 2017, would create a new offense for minors aged 15 or younger accused of sexting, with a maximum punishment of six months in custody of the Department of Youth Services and a fine of up to $500. The minor would not have to register as a sex offender.
But under the bill, most offenses would not reach the penalty phase. The bill would require the attorney general, with input from state education officials and the Massachusetts Aggression Reduction Center at Bridgewater State University, to develop an educational diversion program. The program would teach students about the legal consequences of sexting and also the non-legal consequences, such as the effects on relationships and on education and job prospects. Minors charged with sexting would be sent to the educational diversion program rather than the criminal justice system.
Day said kids send sexually explicit pictures for a range of reasons, from jokes to peer pressure to bullying, without fully understanding the ramifications. “The law as we saw it allowed little discretion to either charge this as child pornography or not charge it at all,” Day said. “We wanted to provide a diversionary education opportunity for children.”
Roy said the behavior among kids generally does not rise to the level of a felony charge, which can ruin someone’s life. But it can be dangerous, with long-lasting consequences, since digital images exist forever. “I think it provides a coordinated and holistic approach to address what we’ve seen is an increasingly prevalent behavior among teens,” Roy said.
In extreme cases, or if the minor does not complete the education program, prosecutors could still petition a judge to have the case go through the criminal justice system, where it would proceed as a juvenile delinquency case. The minor could still be sent to the educational program as a condition of probation.
The consensual sharing of explicit images of themselves between teenagers aged 16 or 17 would not be a criminal offense, nor would the teenagers be required to attend a diversion class, because 16 is the age of consent for sexual activity.
Revenge porn is a separate issue, in which someone agrees to take a sexually explicit photo, but it is distributed without their consent. For example, an adult couple agrees to take sexually explicit pictures, then one partner distributes a picture after a breakup to take revenge on their ex-partner. Current law does not have any criminal penalties for this distribution.
The House bill would make it a criminal offense to distribute visual material showing another person who is nude, partially nude, or engaged in sexual activity if the distribution is done with the intent of causing harm, harassing, intimidating, or threatening someone, and it is done with reckless disregard for the person’s lack of consent. The crime would be punishable by up to two and a half years in prison and a $10,000 fine.
While Massachusetts already has a criminal harassment statute, which could have covered revenge porn, a 2005 Supreme Judicial Court ruling said criminal harassment needs to include three incidents. So prosecutors have not prosecuted revenge porn cases under that law in cases when there is only a single distribution. This bill would let someone be prosecuted for a single instance of revenge porn, and would give the survivor the ability to obtain a harassment prevention order and access a victim/witness advocate and other legal services.
According to Business Insider, 46 states and Washington, DC, have laws banning revenge porn, making Massachusetts an outlier.
Day said part of the reason for the delay in releasing a version of Baker’s legislation is revenge porn laws in other states had been challenged on First Amendment grounds. By now, he said, there have been enough court rulings to allow lawmakers to craft language that will withstand a legal challenge.
This will be the first time the legislation has come to a vote in the House or Senate. If it passes the House, it will go to the Senate for consideration.