SEX CRIMES > IS “REVENGE PORN” ILLEGAL IN MASSACHUSETTS?
“Revenge porn” typically involves a non-consensual disclosure (usually by means of an internet posting) of a sexually explicit image of a former spouse, boyfriend, girlfriend, etc. Despite its widely used label, people who disseminate such materials are not always driven by revenge. Very often their actions are motivated by resentment, anger, jealousy, or other feelings toward their former romantic interest.
The vast majority of the states have enacted and are actively enforcing anti-revenge porn legislation. Massachusetts, however, is one of only a handful of states that have no such law. In 2017, Massachusetts Governor Charlie Baker filed a bill aimed at penalizing perpetrators of revenge porn. Later that year, the Senate voted it down, noting that it “merit[ed] further consideration.” It is unclear why “further consideration” was needed for such an important and highly anticipated legislative act.
Currently, the closest thing that Massachusetts has to an anti-revenge porn statute is General Laws c. 272, § 105. It prohibits the surreptitious photographing, videotaping, or electronically surveilling of a nude or partially nude person. The same statute also prohibits the so-called “upskirting” which involves the photographing, videotaping, or electronically surveilling of a person’s clothed or unclothed private anatomy, even when in public, without that person’s “knowledge and consent.” Finally, General Laws c. 272, § 105 punishes any willful dissemination of the unlawfully obtained visual images of another person without that person’s consent. While proscribing electronic voyeurism upon unsuspecting victims, this law does not address a typical “revenge porn” situation, where the person depicted in a compromising image originally consented to it being taken.
Another statute that Massachusetts law enforcement could potentially use to prosecute perpetrators of revenge porn is General Laws c. 265, § 43A, the statute that criminalizes Criminal Harassment. However, that statute is not without its limitations. It would only become available to prosecutors if a defendant “engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions.” In other words, if the defendant only posted a sexually explicit image of the victim on one occasion, it is unlikely that he or she will be prosecuted under General Laws c. 265, § 43A.
Thus, as of today, it is still not illegal to disseminate “revenge porn” in Massachusetts. It is ironic that the same state that has criminalized the verbal abuse of players and referees at sporting events and legislatively endorsed the issuance of licenses to fortune tellers, has yet to pass the anti-“revenge porn” legislation.