Mass. Gen. Laws ch. 265 § 43A

Current through Chapter 223 of the 2024 Legislative Session

Section 265:43A - [Effective 9/18/2024] Criminal harassment; punishment

(a) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment. The conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

(b)

(1) As used in this subsection, the following words shall have the following meanings unless the context clearly requires otherwise:

"Digitization", the creation or alteration of visual material including, but not limited to, through the use of computer-generated images, in a manner that would falsely appear to a reasonable person to be an authentic representation of the person depicted.

"Distribute", give, sell, transfer, disseminate, publish, upload, circulate, broadcast or engage in any other form of transmission, electronic or otherwise.

"Identifiable", recognizable from the visual material itself or from 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 to an image by any means so as to make such 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 so as to make such image available to the public.

"Visual material", a 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, including visual material produced by digitization, depicting another person, who is either identifiable in the visual material or identified by the distributing person, who is nude, partially nude or engaged in sexual conduct and to whom the distribution causes physical or economic injury or substantial emotional distress, and distributes such visual material with:

(i) the intent to harm, harass, intimidate, threaten, coerce or cause substantial emotional distress; or

(ii) reckless disregard for:

(A) the likelihood that the person depicted will suffer harm, harassment, intimidation, threat, coercion or substantial emotional distress;

(B) the depicted person's lack of consent to the distribution of such visual material, including material produced by digitization; and

(C) the depicted person's 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 2¹/₂years, by a fine of not more than $10,000 or by both such fine and imprisonment. Nothing in this section shall preclude a prosecution under section 29C of chapter 272.

(3) For the 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 of competent 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 district 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 a 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 after having previously been convicted of a violation of section 43, shall be punished by imprisonment in a house of correction for not more than 2¹/₂years 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.

Mass. Gen. Laws ch. 265, § 265:43A

Amended by Acts 2024, c. 118,§ 6, eff. 9/18/2024.

Amended by Acts 2024, c. 118,§ 5, eff. 9/18/2024.

Amended by Acts 2010 , c. 92, § 10, eff. 5/3/2010.

Added by Acts 2000 , c. 164, eff. 10/30/00.

This section is set out more than once due to postponed, multiple, or conflicting amendments.