Revenge Porn in Massachusetts (G.L. c. 265, § 43A(b)): Penalties & Defenses

Sharing someone’s intimate images without consent is a crime in Massachusetts. Since September 18, 2024, the state’s criminal harassment statute, G.L. c. 265, § 43A(b), has made it a crime to knowingly distribute nude, partially nude, or sexual images of an identifiable person when the distribution causes real harm and is done with intent to harm or with reckless disregard. The law covers AI-generated and digitally altered images too. The charge often grows out of a breakup, and the details of what was sent, to whom, and why decide the case.

What the Law Covers

Massachusetts was one of the last states to criminalize what is commonly called “revenge porn,” also known as image-based sexual abuse. The change came in An Act to Prevent Abuse and Exploitation (St. 2024, c. 118), which added a new subsection (b) to the criminal harassment statute.

The statute defines its terms broadly:

• Distribute: give, sell, transfer, disseminate, publish, upload, circulate, broadcast, or transmit in any other way, electronic or otherwise.
• Visual material: a photograph, film, video, or digital image or recording, or any part or reproduction of one.
• Digitization: creating or altering an image, including with computer-generated imagery, so that it would falsely appear to a reasonable person to be authentic. This is how the law reaches deepfakes.
• Partially nude: exposure of fully uncovered buttocks, all or part of the genitals, or the female nipple-areolar complex.

A typical case: a couple takes intimate photos or videos together. After they break up, one of them posts the material online, sends it to the other’s family or employer, or threatens to unless demands are met. The statute is direct on the key point: consent to the creation of an image is not consent to its distribution.

What the Commonwealth Must Prove

Under § 43A(b)(2), the Commonwealth must prove each of these beyond a reasonable doubt:

• You knowingly distributed visual material, including material produced by digitization;
• It depicted another person who was nude, partially nude, or engaged in sexual conduct;
• That person was identifiable in the material, or you identified them;
• The distribution caused the person physical or economic injury or substantial emotional distress; and
• You acted either with intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress, or with reckless disregard for all three of: the likelihood of that harm, the person’s lack of consent to the distribution, and their reasonable expectation that the material would stay private.

Penalties

A conviction under § 43A(b) is punishable by up to 2½ years in the house of correction, a fine of up to $10,000, or both. Because the maximum is a house of correction sentence, it is a misdemeanor.

A court can also issue orders to restrain or prevent the distribution, and the statute does not cut off other civil remedies. Images that become part of the court record are not open to public inspection.

What the Law Does Not Cover

Section 43A(b)(6) lists exceptions. The statute does not apply to:

• voluntary or consensual nudity or sexual conduct in a commercial setting, or in a place with no reasonable expectation of privacy;
• distribution in the public interest, including reporting unlawful conduct;
• lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment;
• material that is a matter of public concern; and
• online platforms and telecommunications providers, for content provided solely by someone else.

Defenses

• No distribution: having an image is not the same as distributing it.
• Not identifiable: the person must be recognizable from the image or identified by the sender.
• No qualifying harm: the Commonwealth must prove physical or economic injury or substantial emotional distress.
• No intent or recklessness: the reckless branch requires disregard of all three listed risks, including the person’s reasonable expectation of privacy.
• An exception applies: for example, reporting unlawful conduct or material that was never private.
• Who actually sent it: shared accounts, hacked devices, and forwarded messages raise real questions of identity. See cell phone privacy.

Why a Lawyer Matters

A revenge porn charge carries jail exposure, a criminal record, and lasting damage to work and relationships, and it often arrives alongside a restraining order or other charges. These cases turn on digital evidence and on the statute’s specific elements and exceptions. Attorney William J. Barabino has defended criminal cases for 23 years. Call 781-393-5900.

Related Charges

• Criminal harassment (G.L. c. 265, § 43A(a)): a pattern of conduct aimed at a specific person.
• Secretly photographing a nude or partially nude person (G.L. c. 272, § 105): taking or sharing images recorded secretly.
• Possession of child pornography (G.L. c. 272, § 29C): when the person depicted is under 18.
• Harassing or obscene phone calls and messages (G.L. c. 269, § 14A): repeated harassing communications.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.