Massachusetts makes it a crime to secretly photograph, videotape, or electronically view a person who is nude or partially nude, or to secretly capture a person's intimate parts under or around their clothing. These crimes are charged under G.L. c. 272, § 105. District Court Instructions 6.530 and 7.190 set out what the Commonwealth must prove beyond a reasonable doubt.
At a Glance: Secretly Photographing
Up to 2½ years
in the house of correction, or a fine of up to $5,000, for an adult
Up to 5 years
in state prison when the intimate parts of a child under 18 are captured
Secretly
the Commonwealth must prove you intended to hide what you were doing
Sharing
spreading an unlawful image is a separate crime with higher penalties
The law: G.L. c. 272, § 105; District Court Instructions 6.530 (2021) and 7.190 (October 2024)
What the Law Covers
Section 105 contains several separate crimes:
Nude or partially nude person (§ 105(b), first paragraph): secretly photographing, videotaping, or electronically surveilling someone who is nude or partially nude, where that person would reasonably expect privacy.
Intimate parts under or around clothing (§ 105(b), second paragraph): secretly capturing a person's intimate parts under or around their clothing, sometimes called upskirting, when a reasonable person would believe those parts would not be visible to the public.
Child under 18 (§ 105(b), third paragraph): the same conduct directed at a child.
Dissemination (§ 105(c)): spreading an image while knowing it was obtained unlawfully.
Key Definitions
Electronically surveils: to view, obtain, or record a person's image using a camera, cell phone or other wireless device, computer, television, or other electronic device. Watching a live feed can be enough; nothing has to be saved.
Partially nude: exposure of the genitals, buttocks, pubic area, or female breast below a point immediately above the top of the areola.
Sexual or other intimate parts: the same areas, whether naked or covered by clothing or undergarments.
What the Commonwealth Must Prove
For a nude or partially nude person, Instruction 6.530 requires proof of five things beyond a reasonable doubt:
You willfully photographed, videotaped, or electronically surveilled the person.
You did so without the person's knowledge and consent.
You intended to secretly conduct or hide the activity.
The person was nude or partially nude.
The person had a reasonable expectation of privacy in not being photographed, videotaped, or surveilled.
Willfully means intentionally, not by accident, inadvertence, or inattention. Whether an expectation of privacy is reasonable is measured by common understanding and practices.
When the charge is about intimate parts under or around clothing, the statute instead requires proof that a reasonable person would believe those parts would not be visible to the public. The Commonwealth must also prove the recording was willful, secret, and without the person's knowledge and consent. When the person is under 18, lack of consent is not an element.
Dissemination
Under Instruction 7.190, the Commonwealth must prove four things to convict someone of dissemination:
You disseminated a visual image of another person without that person's consent.
The image showed a nude or partially nude person, or a person's intimate parts under or around their clothing.
The image was obtained illegally.
You knew it was obtained illegally.
"Disseminate" is broad. It includes distributing, exhibiting, displaying, or publishing. Sending the image only to the person shown in it can be enough.
Penalties
Nude or partially nude person, or intimate parts of an adult: up to 2½ years in the house of correction, a fine of up to $5,000, or both.
Intimate parts of a child under 18: up to 2½ years in the house of correction or up to 5 years in state prison, a fine of up to $10,000, or both.
Disseminating an unlawful image of an adult: up to 2½ years in the house of correction or up to 5 years in state prison, a fine of up to $10,000, or both.
Disseminating an unlawful image of a child's intimate parts: up to 2½ years in the house of correction or up to 10 years in state prison, a fine of up to $10,000, or both.
Police may arrest without a warrant if they have probable cause to believe a violation occurred. Images that are part of the court record are not open to public inspection.
Exceptions
The statute does not apply to a store that monitors its changing rooms if it posts conspicuous warning signs at all entrances and inside each monitored room. It also does not apply to law enforcement officers acting within their authority or under a court order or warrant.
Defenses
Not secret: the recording was done openly, or the person knew about it.
Knowledge and consent: the person knew about and agreed to the recording.
Not willful: the recording or viewing was accidental or inadvertent.
No reasonable expectation of privacy: for nude or partially nude images, the setting did not carry one.
Not nude or partially nude: the image does not meet the statute's definition.
No knowledge: for dissemination, you did not know the image was obtained illegally.
Identification: who actually took, controlled, or shared the image, which often turns on the digital evidence.
Why a Lawyer Matters
These cases usually turn on phones, cloud accounts, and digital forensics, and on exactly what the person knew and where the recording happened. The stigma of a sex-related charge makes it important to get advice early. I have defended criminal cases for 23 years. If you have been charged under § 105, call 781-393-5900.
Related Charges
Wiretapping (G.L. c. 272, § 99): secretly recording or listening in on a conversation.
Revenge porn: distributing intimate images of a person without consent, including images first made with consent.
Criminal harassment (G.L. c. 265, § 43A): a pattern of conduct aimed at a person that seriously alarms them.
Disclaimer
This information is for general educational purposes only and not legal advice. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
