NORTHAMPTON — Northwestern District Attorney David Sullivan testified Tuesday in favor of a law that would criminalize the harmful distribution of sexually explicit materials in Massachusetts and provide a formal avenue to divert sexting cases involving underage people outside of the criminal system.
“Our office has been involved with this legislation for the last five years,” Sullivan said in an interview after his testimony before the Legislature’s Joint Committee on the Judiciary’s virtual hearing.
It is not a crime currently in Massachusetts to maliciously share a naked picture or video of another person without that person’s permission if the picture was taken consensually.
“Forty-eight states have recognized that it’s a crime,” Sullivan said. “The emotional distress that’s caused by these disseminations is remarkable.”
Under the proposed law concerning so-called revenge porn, anyone who distributes “visual material depicting another identifiable person who is nude, partially nude, or engaged in sexual conduct, when the distribution would cause a reasonable person to suffer harm, and does so with the intent to harm, harass, intimidate, threaten or coerce, or with reckless disregard for the likelihood that the person depicted or the person receiving will suffer harm,” and does so without the depicted person’s consent, could be punished by up to five years in state prison or 2½ years in jail.
The legislation also deals with the issue of underage people disseminating pornographic images and videos of their peers. Under current law, underage people can only be charged with dissemination of child pornography in such cases.
“It’s a terrible charge to hang with a juvenile,” Sullivan said.
Sullivan said such instances can become teachable moments, and that the proposed law would make it the norm to divert sexting cases into an educational program, even though he said this is already the practice of Massachusetts district attorneys.
“It should end at the school level with education and counseling,” Sullivan said.
Sullivan said that this should cover 99.9% of cases, and that for those that warrant prosecution, the legislation would also create a misdemeanor that could be prosecuted in the juvenile justice system. He also said that this misdemeanor would not result in an individual having to register as a sex offender.
“We want juveniles to learn and to move on,” Sullivan said.
The legislation was refiled by Gov. Charlie Baker for the current legislative session, and Sullivan expressed hope that it would pass this year.
“This bill makes important corrections in the laws of the commonwealth addressing nonconsensual distribution of private and potentially harmful images,” Baker wrote in a message to the Legislature on the bill.
Rep. Dan Carey, D-Easthampton, said that he wished the governor had refiled the bill earlier in the session and not in December. However, he did say that the revenge porn issue is an important one, and also pointed to a similar bill filed by Rep. Jeff Roy, D-Franklin.
“I think we need to work on both bills,” he said.
Sullivan noted in his testimony that the Baker legislation is supported by the Massachusetts District Attorneys Association.
“All the DAs are in full agreement,” Sullivan said.
Also testifying in favor of the law was Lt. Gov. Karyn Polito, who said the bill would strengthen accountability. Polito also said that several survivor stories about the harmful distribution of sexually explicit materials were shared at a recent roundtable.
“It was horrifying to hear these experiences,” she said.
Not everyone thinks the new law is wise, however.
Attorney Alfred Chamberland, whose law office is in Easthampton, said he believes the law is redundant, because criminal harassment is already a crime in the commonwealth.
“I think it’s unnecessary,” he said, noting that the new law would give prosecutors more discretion on how to charge.
“It allows them to make prosecutorial decisions based on their like or dislike,” he said.
Additionally, Chamberland said the violation of privacy the statute is trying to correct can also be dealt with in civil court. He said he views the juvenile diversion portion of the legislation as positive.
“Any legislation that criminalizes behavior should have some escape trap through diversion,” he said.
Bera Dunau can be reached at bdunau@gazettenet.com.