Massachusetts G.L. c. 272, § 105: Photographing, Videotaping or Electronically Surveilling Partially Nude or Nude Person

With a few exceptions, Massachusetts General Laws Chapter 272, Section 105 makes it a crime to secretly photograph, videotape, or otherwise perform electronic surveillance of a person who is nude or partially nude, or of any sexual or intimate parts of another person, and to disseminate such visual images.

To convict a defendant under M.G.L. c. 272, sec. 105, the Commonwealth must prove, beyond a reasonable doubt, all of the elements in at least one of the following criminal scenarios:

Criminal Scenario 1:

1. The defendant photographed, videotaped, or conducted electronic surveillance of another person;
2. The defendant did so willfully;
3. The defendant intended to conduct that activity secretly or to hide that activity;
4. The other person was nude or partially nude during such photographing, videotaping, or surveilling;
5. The other person was in a place or under circumstances in which he or she would have a reasonable expectation of privacy; and
6. The other person did not have knowledge of or give his or her consent to the photographing, videotaping, or electronic surveilling.

Criminal Scenario 2:

1. The defendant photographed, videotaped, or conducted electronic surveillance of the sexual or other intimate parts of a person, under or around that person’s clothing, to view or attempt to view that person’s sexual or other intimate parts;
2. The defendant did so willfully;
3. The defendant intended to conduct that activity secretly or to hide that activity;
4. A reasonable person would believe that the other person’s sexual or other intimate parts would not be visible to the public; and
5. The other person did not have knowledge of or give his or her consent to the photographing, videotaping, or electronic surveilling.

Criminal Scenario 3:

1. The defendant photographed, videotaped, or electronically surveilled the sexual or other intimate parts of a child under the age of 18, under or around the child’s clothing, to view or attempt to view the child’s sexual or other intimate parts;
2. The defendant did so willfully;
3. The defendant intended to conduct that activity secretly or to hide that activity; and
4. A reasonable person would believe that the child’s sexual or other intimate parts would not be visible to the public.

Criminal Scenario 4:

1. The defendant disseminated the visual image of another person;
2. The defendant did so willfully;
3. The defendant knew that the visual image was obtained unlawfully in violation of this statute; and
4. The other person did not consent to the dissemination of the visual image.

Criminal Scenario 5:

1. The defendant disseminated the visual image of the sexual or intimate parts of a child under age 18;
2. The defendant did so willfully; and
3. The defendant knew that the visual image was obtained unlawfully in violation of this statute.

Electronic surveillance includes viewing, obtaining, or records a person’s visual image with a camera, cell phone, computer, television, or other electronic or wireless communication device.

The statute defines “partially nude” as requiring the exposure of human genitals, buttocks, pubic area, or breast below a point located immediately above the top of the areola.

Additionally, under the statute, the “sexual or intimate parts” of another include all of the areas described in the definition of “partially nude” above, regardless of whether such areas are naked or are covered by clothing or undergarments.

A defendant might be charged under this statute if he or she secretly photographs, videotapes, or otherwise records another person getting undressed in the person’s own house, or another person using the restroom in either a public or private establishment, or another person engaged in sexual conduct, if the other person has no knowledge of the recording and did not give his or her consent. Likewise, if the defendant knew that a video or photograph of this kind was unlawfully recorded, he or she may be convicted under this statute for sharing that video or photograph with others, even if the defendant was not the one to make the unlawful recording.

If the person who was recorded had knowledge that the photo or video was being made, and gave his or her consent to the visual recording, then those facts will provide a defense to a person charged under this statute. Additionally, if the nude or partially nude image appears in the background of a photo or video primarily focused on a different person, object, or visual depiction, it may be difficult for the Commonwealth to prove that the defendant willfully photographed or videotaped the nude or partially nude person, and that the defendant intended to do so secretly. Likewise, it would be a defense that the photograph or video was taken in a place or under circumstances in which the other person did not have a reasonable expectation of privacy (i.e., in public). Finally, the circumstances under which the police learned of the photograph, video, or other surveillance may provide a basis for a defense lawyer to bring a motion to suppress the evidence as unlawfully obtained (i.e., if it was obtained during an unlawful search of the defendant or his or her property).

As they are described above, both Criminal Scenario 1 and Criminal Scenario 2 are punishable by imprisonment in the house of corrections for up to 2.5 years, or by a fine of up to $5,000, or both. Criminal Scenario 3 and Criminal Scenario 4 are each punishable by imprisonment in the house of correction for up to 2.5 years, or by imprisonment in the state prison for up to 5 years, or by a fine of up to $10,000, or by both a fine and imprisonment. Criminal Scenario 5 is punishable by imprisonment in the house of correction for up to 2.5 years, or by imprisonment in the state prison for up to 10 years, or by a fine of up to $10,000, or by both a fine and imprisonment.

If you or someone you know has been charged with secretly photographing or recording a nude or partially nude person or child, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman will evaluate your case prepare your strongest defense against those charges. Contact us today for a free and confidential consultation at 617-263-6800 or online.