Massachusetts G.L. c. 272, § 29A: Posing or Exhibiting Child in State of Nudity or Sexual Conduct

Massachusetts General Laws Chapter 272, Section 29A makes it a crime to knowingly pose a child under the age of eighteen in the nude, or in any state that represents sexual conduct, for purposes of photographing, videotaping, or otherwise creating a visual depiction of that child. The statute makes it illegal for any person to:

either with knowledge that a person is a child under eighteen years of age 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, [and with lascivious intent,] hire, coerce, solicit or entice, employ, procure, use, cause, encourage, or knowingly permit such child to

1. pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, [or]
2. 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.

To convict a defendant under this statute, the Commonwealth must prove all of the following beyond a reasonable doubt:

• The defendant knew or had reason to know that the child was under age eighteen;
• Either (a) the child was posed or exhibited in the nude, and, with lascivious intent, the defendant knowingly participated in posing or exhibiting the child in that way, or (b) the child participated or engaged in a depiction or representation of a sexual act, and the defendant knowingly participated in the child’s involvement in that activity; and
• The defendant did so for the purpose of recording, photographing, or creating some other visual representation of the child.

The “lascivious intent” requirement applies only to subsection (a) of the statute. Lascivious intent requires a showing that the defendant acted with some obscene or pornographic purpose in posing or exhibiting the nude child.

Depending on the circumstances of the act, a person who photographs or videotapes a child who is naked, or whose naked breasts, genitals, or buttocks are viewable, and who allows, encourages, or suggests that the child appear in that state, may be convicted under subsection (a) of the statute. Likewise, a person who photographs, videotapes, or participates in a live performance of a child who is participating in a sexual act, or even suggests the child’s participation in sexual conduct, and the person allows, encourages, or suggests that the child do so, may also be subject to punishment under subsection (b) of Section 29A.

A person charged with posing a child in a state of nudity or sexual conduct may also face charges of purchasing or possessing of visual material of a child depicted in sexual conduct (M.G.L. c. 272, Section 29C) and/or disseminating visual material of a child in a state of nudity or sexual conduct (M.G.L. c. 272, Section 29B).

A skilled criminal defense lawyer may raise several potential defenses on behalf of a client charged under Section 29A. For example, the photograph, video, or other visual depiction may not be a “lewd exhibition” or provide evidence of “lascivious intent” if the depiction appears to have artistic quality independent of the nude subject matter, or where the depiction has no elements suggestive of sexuality. Additionally, it may be possible for a defense attorney to suppress some evidence that the government wants to admit against the defendant if that evidence was unlawfully obtained, as through a warrantless seizure of the defendant’s camera or other possessions where the photograph or video was discovered.

If convicted under this statute, the crime is punishable by:

• Imprisonment in the state prison for ten to twenty years;
• A fine of between $10,000 and $50,000; or
• Both imprisonment and a fine.

If you or someone you know has been charged with posing or exhibiting a child in a state of nudity or sexual conduct, contact Attorney Stephen Neyman at the Law Offices of Stephen Neyman, P.C. With almost three decades of experience, Attorney Neyman is skilled in defending clients against charges involving the production, possession, and dissemination of allegedly illicit photos or videos of children. For a free and confidential consultation, contact us at 617-263-6800 or online.