Bill Seeks To Narrow Obscenity Loophole Protecting Minors

It would seem that almost anyone could agree on the need to criminalize and punish Massachusetts sex offenders who deliberately send obscene messages electronically to minors, wouldn’t it? Well, make that “anyone could agree on the need” to accomplish these goals – but hardly the method.

This reality has been on full display in the recent past, as the legal and legislative system in Massachusetts twist and turns its way to consensus and legal enforceability of measures to accomplish this goal. Exhibit A in that effort has been the case of Commonwealth v. Zubiel, 921 N.E.2d 78 (Mass. 2010.) This defendant was convicted in Massachusetts Superior Court of electronically sending sexually graphic instant messages to a recipient that had identified herself via the instant messages as a 13 year-old girl named “Melissa QT 1995”. Unbeknownst to Zubiel, “Melissa QT 1995” was an undercover state police officer. Zubiel texted “Melissa” that he was 25 years old, and the two agreed on a time and place where they would meet. Zubiel asked “Melissa” for nude photographs, questioned her about her sexual experience, and finally set up an in-person meeting with her. Zubiel was apprehended and arrested as he was walking toward an apartment building address which the undercover officer said “Melissa” lived at. The Commonwealth won convictions on four charges of attempting to disseminate matter harmful to minors under Massachusetts General Laws C. 272, § 28. Zubiel appealed those convictions, and the Supreme Judicial Court (SJC) reviewed the case on its own motion.

In a decision that enraged a lot of people, on Feb. 5, 2010, the SJC overturned Zubiel’s conviction. The justices agreed with Zubiel’s argument that “harmful material” banned under M.G.L. C. 272, § 28, the law in effect at the time, didn’t include instant messages or other forms of electronic communication. The reasoning: C. 272, § 28 provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished. . . .” “Matter” is defined in G.L. C. 272, § 31, for purposes of § 28, as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” The court ruled that instant messaging and online conversations do not specifically fall under the definition of “matter” under § 31.

In response, the Massachusetts Legislature rapidly passed a bill amending the law, in an attempt to close the loophole. But then that fix itself ran into legal trouble – from predictable corners. The American Civil Liberties Union of Massachusetts, internet content providers and other groups filed suit in federal court against the state Legislature’s amendment, arguing that the reworded law was overly broad. They argued that the new law could effectively ban material from the internet that might be considered “harmful to minors,” but that adults have the right to view.

In October, U.S. District Court judge Rya Zobel agreed with them, writing that the proposed amendments to the law would violate the First Amendment. (And we can’t do that, can we? Because adult perverts have their rights, too …) I think you can see how I feel about this decision. As a Boston, Massachusetts sexual offenses attorney, I can and do appreciate that anyone accused of a crime must have the presumption of innocence, and that laws criminalizing any conduct must be narrowly drawn and so interpreted. But at what point does protecting innocent children from sexual molesters and perverts trump these otherwise legitimate concerns?

The current bill before the Legislature narrows the definitions further: It requires prosecutors to show that a suspected sexual predator intentionally and knowingly sent obscene electronic messages to someone he or she reasonably believed to be a minor. Under the proposal, a person who purposely disseminates sexually graphic material to a minor could be sentenced to up to five years in state prison. But the legislation clarifies that a person could not be prosecuted for sending a sexually explicit electronic message “unless he specifically intends to direct the communication to a person or persons he knows or believes to be a minor or minors.” The specific intent language is critical, because hopefully it will satisfy the “concerns” of the free speech groups that successfully challenged the earlier amendments, that the current law defines “harmful material” so broadly that it could be applied to websites that contain sexual material or nudity but are targeted only at adults, not children.

State Senator Cynthia Creem, Democrat of Newton, who is cosponsoring the current bill to correct the law, commented that “Predators can reach minors through a whole different mode”, and noted that the revised bill would address issues such as “sexting” – the texting of nude pictures – to minors – without interfering with the free speech rights of consenting adults. The American Civil Liberties Union of Massachusetts was, in my view as a Dedham, Massachusetts criminal defense attorney, more smug in its own response: Said John Reinstein, legal director of the American Civil Liberties Union of Massachusetts, “We think the bill will resolve the issues in the lawsuit” – while at the same time warning that the ACLA will not withdraw its federal law suit until the corrected bill is signed into law by the governor. In his statement, Reinstein said the ACLU of Massachusetts and the other plaintiffs in the federal suit are not trying to block prosecution of sexual predators who use the Internet.

That’s big of them.

Let’s hope this bill passes, and that we can bring a greater measure of protection for children against sexual predators … without “offending” the “free speech rights” of internet content providers. In the meantime, Attorney General Martha Coakley has stated that the re-worked bill will be one of her priorities for the legislative session that began in January.