May 16, 2022 by Anthony Riccio
Under the current laws in Massachusetts, it can be a crime for a minor to encourage another minor to transmit a sexually explicit visual image. And a conviction can have serious consequences.
Kids these days have access to social media from a very early age. It’s not unusual for a 10-year-old to have her own phone. Cell phones give minors a level of freedom from parental control that is still relatively new in terms of regulating some of the issues created by the ability to send and receive digital images without supervision.
One such issue is the widespread practice of minors transmitting sexually explicit words or images via their digital devices. The concern is that minors who ‘sext’ are not fully aware of the potentially harmful significance of their behavior to themselves or to others.
Unfortunately, lawmakers in many states have not kept up with the changing times. Although at least 26 states have laws that specifically address sexting by minors, the others have no specific laws that regulate minors who send sexually explicit images to other minors.
For states without laws targeting minors, sexting may violate a state’s child pornography laws which label such conduct a felony and have severe penalties – including registration as a sex offender – because they are aimed at adults who are child predators.
Massachusetts currently has no laws regarding sexting between minors but has legislation pending that would prohibit minors from sexting and would provide lesser penalties for violations with a focus on awareness and education.
Sending sexually explicit visual content or sexting is the action of using a digital device to transmit words, photos, or videos that are sexual in nature. The content may involve only nudity or may depict sexual behavior.
There is no problem (at least with the law) if this is done between consenting adults. But in most cases with minors under the age of 18, it is not considered acceptable conduct and in some states can result in serious criminal consequences.
A recent study shows that sexting, like cell phone use generally, is increasing among minors – most especially older teens. The study, reported in the Journal of the American Medical Association (JAMA) Pediatrics, concluded the following as of 2018:
The Massachusetts Legislature has been trying for several sessions to pass a bill that would address minors who sext with other minors. However, at the current time, because sexting involves the transmission of sexually explicit material either depicting minors or with minors as intended recipients, such behavior may violate the Commonwealth’s laws targeting child pornography.
Title IV, Chapter 272, of the General Laws of Massachusetts, contains the laws proscribing crimes against chastity, morality, decency, and good order, which may apply to sexting.
Massachusetts law prohibits a person from spreading to a minor any ‘matter’ that is ‘harmful to a minor’. Matter that is harmful to a minor involves:
A first offense for sending harmful matter to a minor is punishable by up to 2 ½ years in jail or up to 5 years in prison. Fines range between $1,000 and $10,000.
A person who ‘solicits’ a minor to pose for a nude or sexually explicit photo knowing the minor to be underage, can be sent to prison for a term of 10 to 20 years and fined between $10,000 and $50,000.
Someone who spreads a nude or sexually explicit visual representation of a minor with lascivious intent (the objective of sexual gratification or arousal) can also be imprisoned for 10 to 20 years and fined a minimum of $10,000 and a maximum of $50,000 or more if the motive for the dissemination was monetary gain.
Anyone who knowingly possesses a sexually explicit visual depiction of a minor may be penalized by jail time of 2 ½ years or a prison term of 5 years. In addition, fines may be imposed beginning at $1,000 up to a maximum of $10,000.
Applying the laws intended to punish adults engaging in child pornography to minors who are sexting is not an adequate solution to a growing problem that needs to be addressed. Law enforcement officials are forced to charge minors with the felony of child pornography or not at all.
Bill H. 1859, An Act Relative To Transmitting Indecent Visual Depictions by Teens, is currently before the legislature. If passed, the bill would add a new section to Chapter 272 directed at minors who are ‘transmitting indecent visual depictions’ and penalizing the conduct as a misdemeanor with fines between $50 and $500 and a maximum six-month commitment to the department of youth services. In most cases, the goal would be to have the minor avoid the criminal justice system and instead complete an educational diversion program.
A minor would have a defense to sexting charges if the visual depiction was only of the minor being charged or the visual depiction was voluntarily offered by another minor over the age of 15 and the depiction was not transmitted other than between the two consenting minors. Minors convicted of sexting would not be required to register as sex offenders.
Northwestern District Attorney David E. Sullivan has been a supporter of the bill as a better way to hold minors accountable for their behavior while focusing on education rather than punishment. Sullivan says that educational diversion programs would provide the solution for 98% of the minors caught sexting. Diversion programs teach minors about the dangers of their behavior and allow them to avoid the stigma of a criminal record.
