Supreme Judicial Court (October 19, 2007)

The statute criminalizing the possession of child pornography, G.L. c. 272, § 29C, is constitutional. G. L. c. 272, § 29C is not vague or overbroad, nor is the scienter requirement impermissible.

The defendant challenged his conviction for possession of child pornography on the ground that G.L. c. 272, § 29C, is unconstitutional on its face. The defendant had approximately 323 computer images depicting children in a state of nudity or engaged in sexual conduct. The SJC granted the defendant's application for direct appellate review and ruled as follows:

  • G.L. c. 272, § 29C is not vague or ambiguous. The statute's terms, guided by a commonsense understanding of the words and the legislative intent to protect children from sexual exploitation, are clear.

  • G.L. c. 272, § 29C is not overbroad. The statute is valid, despite the Legislature's choice not to provide an exemption for artistic or scientific materials.

  • G.L. c. 272, § 29C does not impose an impermissible scienter requirement. The defendant argued that the phrase "knows or reasonably should know to be under the age of 18 years of age" impermissibly imposes a scienter requirement on the defendant, who may be mistaken about a child's age, and therefore is penalized for an error in judgment. The SJC determined that the Commonwealth's burden of proof relative to knowledge may be satisfied with evidence of the physical disparity in age between the subject and an 18-year-old. Such proof must be obvious to a reasonable person, and the Commonwealth may use corroborative evidence that the defendant reasonably should have known the child's age.

The Court concluded that the statute is sufficiently explicit to give clear notice as to the proscribed conduct. The defendant's conviction was affirmed.