Massachusetts is a state that takes sex crimes very seriously. Sex offenses include crimes like rape, possession of child porn*graphy, and sexual assault of a minor. Another offense that falls under the category of sex crimes is secretly photographing or videotaping a person who is partially or fully nude. Since most of us have cell phones and social media, it is important to understand what types of photos and videos are permitted and which are illegal.
What does it mean to secretly photograph or videotape a nude or partially nude person?
Massachusetts General Laws Chapter 272, Section 105(b), Paragraph 1 gives us a definition of this crime of secretly photographing or videotaping a nude or partially nude person. There are five elements, or requirements, for a person to be found guilty of the offense. They are:
- Willfully photographing, videotaping, or electronically surveilling another person
- Doing so without the other person’s knowledge or consent
- Intending to do so secretly or in a hidden manner
- The other person was naked or partially naked
- The other person had a reasonable expectation of privacy
No person can be punished for committing this crime unless the government proves each of the five elements beyond a reasonable doubt. An effective criminal defense attorney will show to the judge and jury that the evidence does not satisfy one or more of the requirements.
What does it mean to electronically surveil someone?
The first requirement of the crime is that the accused must have willfully photographed, videotaped, or electronically surveilled another person. To photograph or videotape another person is self-explanatory, but what does it mean to “electronically surveil” them?
Sometimes laws provide definitions of the words they used. In Subsection (a) of the law that defines the crime we are discussing, “electronically surveil” is defined. It means to “view, obtain or record a person’s visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.”
What does it mean to photograph or record willfully?
To commit a crime usually requires that you have a certain mens rea or state of mind. That state of mind is often, but not always, intent. To do something “willfully” is another way of saying to do something intentionally. This means that for this crime, the photography, video-recording, or electronic surveillance must have not been accidental.
The third requirement of the crime also requires a certain state of mind. Again, that state of mind is intent. To be found guilty, the accused must have intended that the photography, recording, or video surveillance be secret or hidden.
What does it mean to be nude or partially nude?
While it may seem obvious, partially nude has a legal definition. Again, Subsection (a) has it. To be “partially nude” means “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”
Lawyers always ensure that when a word is defined by a law the ordinary (dictionary) meaning of the word is not used instead. This protects people accused of crimes from being punished for actions that were not illegal.
The law does not say what it means to be fully nude so that is left to the common sense of the jury or a judge to determine.
What is a reasonable expectation of privacy?
The final requirement of the crime is that the person who was photographed, recorded, or electronically surveilled had a “reasonable expectation of privacy.”
A reasonable expectation of privacy has two requirements:
- The person actually expected privacy
- The person’s expectation was reasonable
To “actually” expect privacy means to subjectively expect it. For example, a person changing clothes in the privacy of their own home with the blinds closed would likely expect that they are in private. They would expect that no one outside their home is watching them. To “actually” expect privacy means to think to yourself “I’m in private.”
Whether an expectation of privacy is reasonable is not determined by any one person but by society as a whole. Sometimes a person’s expectation of privacy is not reasonable. For example, a person who walks down the main street of a town completely naked could not reasonably expect privacy. It would be unreasonable to think no one else was looking. On the other hand, society would likely say that it is reasonable to expect privacy when a person takes a shower in their own home with the blinds drawn.
Whether privacy was actually expected and whether it is reasonable is usually a question of fact. This means that it is up to a judge or jury to decide using their common sense.
Are there other ways to illegally photograph or videotape someone?
Yes, there are two other different crimes that involve illegally photographing or videotaping a person that are not the sameas the crime we discuss here. They both involve illegally photographing or videotaping a person who is clothed:
- Photographing, videotaping, or electronically surveilling an adult’s intimate parts when they are clothed
- Photographing, videotaping, or electronically surveilling a minor’s intimate parts when they are clothed
Photographing, videotaping, or electronically surveilling an adult’s intimate parts is punished under General Laws Chapter 272, Section 105(b), Paragraph 2. Doing the same to a child is punished under Paragraph 3.
The statute gives a definition of “sexual or other intimate parts”. They are “human genitals, buttocks, pubic area or female breast below a point immediately above the tip of areola, whether naked or covered by clothing or undergarments.”
What is the punishment for secretly photographing or recording a nude or naked person?
The law says that a person who is found guilty can be punished with a sentence of:
- Up to 2 ½ years in the House of Correction
- A fine of up to $5,000
- Up to 2 ½ years in the House of Correction AND a fine of up to $5,000
IF YOU OR A LOVED ONE ARE CHARGED WITH A SEX CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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