Here comes another ‘vague and overly broad’ panic attack. This time its over a Massachusetts law regarding exploitation of the disabled or elderly.
The formula is quite predictable at this point. There is some horrific crime committed. Someone screams ‘there out to be a law’. Nobody notices there already IS a law. Some media whore politician rolls out a law trying to show just how concerned and empathic they are. A bunch of conspiracy theorists goes into a tizzy saying the law is ‘vague and overly broad’ and could get used to target people who haven’t done anything wrong.
For the sake of reference, the two laws as they currently stand on the books are Chapter 272: Section 29A and Chapter 272: Section 29B. Below are the bills as they would appear after the update. Bold indicates where there is an insertion. Strike through indicate a word removed. Relevant definitions are hot linked.
Chapter 272: Section 29A. Posing or exhibiting child, an elder or a person with a disability in state of nudity or sexual conduct; punishment
Section 29A. (a) Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability. and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment. For purposes of this section “an elder” and “a person with a disability” shall be defined as those terms are defined in Section 13K of Chapter 265.
(b) Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child an elder or a person with a disability to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
(c) In a prosecution under this section, a minor or an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.
(d) For the purposes of this section, the determination whether the person in any visual material prohibited hereunder is under eighteen years of age, an elder or a person with a disability may be made by the personal testimony of such person, by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child person therein was known to him to be under eighteen years of age, or to be an elder or a person with a disability or by expert medical testimony as to the age or disability of the person based upon the person’s physical appearance, by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence.
Chapter 272: Section 29B. Dissemination of visual material of child, an elder or a person with a disability in state of nudity or sexual conduct; punishment
Section 29B. (a) Whoever, with lascivious intent, disseminates any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity involving the use of a child who is under eighteen years of age, an elder or a person with a disability, knowing the contents of such visual material or having sufficient facts in his possession to have knowledge of the contents thereof, or has in his possession any such visual material knowing the contents or having sufficient facts in his possession to have knowledge of the contents thereof, with the intent to disseminate the same, shall be punished in the state prison for a term of not less than ten nor more than twenty years or by a fine of not less than ten thousand nor more than fifty thousand dollars or three times the monetary value of any economic gain derived from said dissemination, whichever is greater, or by both such fine and imprisonment.
(b) Whoever with lascivious intent disseminates any visual material that contains a representation or reproduction of any act that depicts, describes, or represents sexual conduct participated or engaged in by a child who is under eighteen years of age, an elder or a person with a disability, knowing the contents of such visual material or having sufficient facts in his possession to have knowledge of the contents thereof, or whoever has in his possession any such visual material knowing the contents or having sufficient facts in his possession to have knowledge of the contents thereof, with the intent to disseminate the same, shall be punished in the state prison for a term of not less than ten nor more than twenty years or by a fine of not less than ten thousand nor more than fifty thousand dollars or three times the monetary value of any economic gain derived from said dissemination, whichever is greater, or by both such fine and imprisonment.
(c) For the purposes of this section, the determination whether the child person in any visual material prohibited hereunder is child under eighteen years of age, an elder or a person with a disability may be made by the personal testimony of such child, elder or person with a disability by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child therein was known to him to be under eighteen years of age, or to be an elder or a person with a disability by testimony of a person who observed the visual material, or by expert medical testimony as to the age of the child based upon the child’s physical appearance, or that of an elder or a person with a disability by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence. For purposes of this section “an elder” and “a person with a disability” shall be defined as those terms are defined in Section 13K of Chapter 265.
(d) In a prosecution under this section, a minor or elder or a person with a disability adjudicated as incompetent by a court of the commonwealth shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.
(e) Pursuant to this section, proof that dissemination of any visual material that contains a representation or reproduction of sexual conduct or of any posture or exhibition in a state of nudity involving the use of a child who is under eighteen years of age, an elder or a person with a disability was for a bona fide scientific, medical, or educational purpose for a bona fide school, museum, or library may be considered as evidence of a lack of lascivious intent.
NOTE: 29A(a) winds up having a period in a very wierd spot. The insertion at ‘physical appearance by inspection’ in 29B(c) the law doesn’t clearly state if the insertion is before or after the comma. I put in in after. I know location of puncuation in law can sometimes be critical.
So ….. lets examine the paranoid ‘nightmare situation’ all the sex rights advocates are freaking out over. Happily married couple who in the privacy of their own bedroom, celebrate their 60th birthday by taking some naughty photos of each other. Government goons instantly kick in the door and haul them both off to jail forever and ever. Could it happen?
Well firsat of all, Section 29B is right out. They didnt have any intention to distribute so that part dosent apply to them.
But in either case, distributor or not, there are provisions for consent. Though the paranoid panic attacks are totally correct when they link to the definition of ‘elderly’ and say ‘there is nothing in the definition of elderly that exempts those who do so willingly’, what is skipped over is that the law itself makes that exemption. 29A(c) and 29B(d) both note that in order for it to be a crime, the ‘elderly or disabled’ as to have been found by by a court to be incompetent. Since the theoretical couple in their bedroom haven’t been found by a court to be incompetent, and are both totally able to think and care for themselves, the law wouldn’t apply to them. ‘Definition’ of elderly doesn’t matter.
As I said, the formula is quite predictabal. The ‘vague and overly broad’ is once again just lingustic nitpicking that stirs up all the fear of an opresive puriticinal police state. It dosent even pause to wonder if the word might be narrowly defined, but just not narroly defined at the spicific location they are looking.
I said it before, I will say it again. ‘Vague and overly broad’ is to sexual rights advocates what ‘please wont someone think of the children’ is to family values advocates.