House Bill 1688, drafted by the legislative committee of the coalition called Building Partnerships for the Protection of Persons with Disabilities Initiative, addresses the disturbing issue of caretakers who photograph/film elders and persons with disabilities in sexually explicit situations against their will, and distribute such visual material. This narrowly-tailored bill targets only (1) the sexual exploitation of court-adjudicated, legally incompetent elders and persons with disabilities and (2) the sexual exploitation of legally competent elders and persons with disabilities who do not consent to being photographed in a sexually explicit manner and to the distribution of such materials.

Representative Kathi-Anne Reinstein, a champion of elders and persons with disabilities, is the chief sponsor of the bill.

This bill focuses on non-consensual sexual exploitation, and does nothing to criminalize consensual sexual activity between competent adults.

Summary of Bill's Intent:

HB 1688 is targeted to address only the sexual exploitation of legally incompetent elders and persons with disabilities and the sexual exploitation of legally competent elders and persons with disabilities who do not consent to participate in the photographing and distributing of sexually explicit material of themselves.

Prior to filing of HB 1688, for the purpose of ensuring the Constitutionality and the protection of personal rights HB1688 was vetted by the following agencies within the Commonwealth of Massachusetts:

The Office of the Attorney General, the Department of Mental Health, the Department of Mental Retardation, the Massachusetts Rehabilitation Commission, the Disabled Persons Protection Commission and the Massachusetts District Attorneys Association.

Analysis:

This Bill has been filed because of the disturbing issue confronting law enforcement personnel of cases in which elders and persons with disabilities are being exploited against their will by being photographed by their caretakers and others in the nude or in sexually explicit situations. These photographs/ or visual representations are then sometimes distributed. Cases such as:

  • The father who over several years photographed his adult daughter in highly sexualized situations for no legitimate purpose other than his own. His daughter has a severe intellectual disability and was determined incompetent.
  • Two caretakers who were bathing an adult male with cerebral palsy who against his will posed him in several explicitly sexual situations and photographed him all the while mocking his private area.

Currently, no criminal liability attaches to such activity when it involves either an elder or a person with a disability. This Bill is a recognition that members within these populations can be vulnerable to this kind of exploitive activity and should be protected from their unwilling participation in it.

The Bill amends M.G.L. c. 272 §§ 29A and 29B. These sections of the law as currently configured are the Commonwealth's "child pornography laws". These sections of the criminal code are familiar and well known by law enforcement, prosecutors and the courts. There is a well developed body of law which informs the application and enforcement of these sections of the criminal code. It is for these reasons that House Bill 1688 builds upon the current statute to extend its protections to elders and persons with disabilities and in no way prohibits activities consented to by persons with disabilities and elders.

Initially it is important to recognize that criminal liability attaches only to that person who produces and/or distributes the sexually explicit material. Criminal liability DOES NOT attach to the person who is being photographed. Hence, under the amendments contained in HB 1688, neither the child, elder nor the person with a disability who is being photographed in a sexually explicit manner can be arrested or prosecuted for their participation in such activity.

Secondly, in order for the person who produces and/or distributes the sexually explicit material to be successfully prosecuted, it must be proven beyond a reasonable doubt that such producing and/or distribution was done with "lascivious intent."

Thirdly, both sections 29A and 29B preserve consent of a competent elder or competent person with a disability as a defense against prosecution of the person who produces and/or distributes such sexually explicit material. In other words, if a competent elder or competent person with a disability willingly consents to his or her participation in the production or distribution of such sexually explicit material, the person who produces and/or distributes the sexually explicit material has an absolute defense against prosecution and criminal liability. (See c. 272 §29A[c] and §29B[d])

Conclusion:

HB 1688 addresses only the sexual exploitation of elders and persons with disabilities who are legally incompetent and the sexual exploitation of legally competent elders and persons with disabilities who do not consent to participate in the photographing and distributing of sexually explicit material of themselves. Therefore, any elder or person with a disability who is competent and who willingly participates in this kind of activity - even if they photograph themselves in sexually explicit situations and distribute such material to others cannot be prosecuted pursuant to the amendments contained in HB 1688.