By Chris Lisinski, State House News Service
STATE HOUSE, BOSTON, JAN. 10, 2024….For the second straight legislative term, the House unanimously approved legislation Wednesday aimed at closing a “loophole” that makes Massachusetts one of only two states without a clear, enforceable ban on revenge porn.
Representatives voted 151-0 Wednesday in support of a bill that would deem it criminal harassment to share sexually explicit images or videos of someone without their consent, create a new legal framework for teen sexting and add “coercive control” to the definition of abuse in state law.
Disseminating explicit material without a subject’s permission, a practice often referred to as revenge porn, has become increasingly common in the digital age. But anti-sexual assault and violence groups warn that Massachusetts and South Carolina fail to prohibit the practice, unlike 48 other states with more explicit protections on the books.
Judiciary Committee Co-chair Rep. Michael Day of Stoneham said his panel heard harrowing experiences from survivors about intimate pictures or videos of them being shared widely without their permission, sometimes as an act of retribution from a former romantic partner. One person, Day recalled, asked lawmakers to “imagine going to file charges related to this breach of trust and being told there is nothing or very little that can be done in the criminal justice system.”
“We in this body believed and still believe that this conduct falls under the definition of criminal harassment, yet as we listened to these individuals relay their painful stories to us and spoke with our prosecutors, we found that this crime was not being charged for a number of reasons, chief among them a loophole that’s developed in case law around our criminal harassment statute,” Day said in remarks on the chamber floor during the House’s first formal session after a seven-week holiday break.
Lawmakers have previously pointed to a 2005 Supreme Judicial Court ruling as a problem, saying it effectively prevented prosecutors from charging suspects in revenge porn cases unless there were three or more incidents.
The House-approved bill seeks to close that gap by adding a new section to the state’s criminal harassment law prohibiting distribution of sharing sexually explicit pictures or videos of someone without their consent if it causes them physical or economic injury or emotional harm. The legislation authorizes penalties of up to two and a half years in prison and a maximum $10,000 fine.
“It’s my hope that the words these survivors uttered carry this bill forward from this chamber with urgency and help deliver the action that our constituents so richly deserve,” Day said.
Like the version the House approved in 2022, the bill that sailed through the chamber Wednesday also crafts new options for law enforcement to deal with sexting between adolescents.
It would instruct the attorney general’s office to create an educational diversion program, where minors who share explicit images of themselves or their peers would be directed instead of into the justice system. Teenagers who are 16 and 17, and therefore legally able to consent to sex, would not face criminal penalties for consensually sharing explicit images.
Lawmakers said the existing statute is too narrow, presenting police with only two real options when teenagers exchange explicit images and videos: charge them for possessing or disseminating child pornography, or do nothing.
“Law enforcement officers are looking for a middle ground that will allow them to educate kids about the consequences of their actions without ruining their lives,” said Rep. Jeff Roy, a Franklin Democrat. “[The bill] strikes that balance and it puts teens in a position to learn both the legal and non-legal consequences of their actions because of the comprehensive educational program.”
The House-approved bill also newly features language expanding the definition of abuse to include “coercive control,” which includes behaviors aimed at limiting a victim’s safety or autonomy. The Judiciary Committee approved that addition when it advanced the bill in the fall.
Rep. Tram Nguyen said in her past work as a legal aid attorney, she had many clients who were “unable to escape controlling partners because the courts did not recognize” the abuse they faced.
One client, Nguyen recalled, was in a relationship for 20 years and had two children with a man who “refused to marry her.” They bought a house together, but the man convinced her to put only his name on the paperwork with “all these lies” about potential financial complications if they both signed on.
“Fast forward two decades later, he’s with another person and he wanted to kick her out with her two children, claiming she has no stake in that house. That is the type of coercion that we’re talking about — all those years that she was there contributing to the house completely gone,” Nguyen, an Andover Democrat, said. “We were so lucky that we were in front of a judge who recognized the coercion, that she didn’t decide to put the house in his name, that she was coerced into it, and we were able to get her a claim to this home.”
“But these sorts of things should not be dependent on luck,” she added. “Judges and the courts need to recognize this across the board to make sure that people do not feel like they don’t have any say in how their lives play out.”
In addition to adding coercive control to the kinds of abuse that can qualify for a restraining order, the House bill would extend the statute of limitations from six years to 15 years for assault and battery on a family or household member or against someone with an active restraining order, according to a summary House Democrats produced.
Rep. Natalie Higgins of Leominster said that change lines up with the existing statue of limitations for rape and other sexual violence crimes.
“It’s critical that we give survivors of domestic violence enough time to escape their perpetrator, to build a supportive and protective network and feel that they and their loved ones are safe enough to come forward to law enforcement and share the reality of what they’ve endured,” she said.
Representatives adopted an amendment filed by Pittsfield Democrat Rep. Tricia Farley-Bouvier extending the restrictions on revenge porn to include “deepfake” pornography created by computer generation without a subject’s consent. Farley-Bouvier said increasingly powerful AI that allows creators to manipulate sexually explicit videos of someone is “yet another advancement that we need to make sure that we regulate.”
Jane Doe Inc., a statewide group focused on addressing sexual assault and domestic violence, praised the legislation as providing “essential protections” for survivors.
“Alongside survivors and advocates across Massachusetts, we hope the State Senate will take up this essential, lifesaving legislation without delay, and bring us one step closer to achieving justice for survivors and preventing future violence,” the group said in an unsigned statement.
Survivors and reform supporters will hope for a better outcome this time around than when the House last took up a bill cracking down on proliferation of revenge porn.
Representatives unanimously approved an earlier version of the measure in May 2022, arguing at the timethat it was a long-overdue change that would align Massachusetts with 48 other states that had clear bans in place.
The bill sat idle for the next seven months until Senate Democrats decided to bring it forward less than a week before the lawmaking term ended.
Senators made some changes to the bill, in particular suggesting a more detailed process for juvenile court diversion, and the House never acted on those alterations. The bill died at the end of the 2021-2022 session, forcing supporters to restart the process from the beginning.
It’s not clear if the Senate will respond to the House’s vote more quickly this year. Asked for a timeline on action, a spokesperson for Senate President Karen Spilka on Wednesday said the chamber “will review the legislation after it is passed by the House.”