FAQ
How can the Juvenile Court or District Attorney make a referral to the Program?
Referrals to the Program can be made by the Juvenile Court or District Attorney. The AGO YDP referral form may be completed by any juvenile court personnel, an Assistant District Attorney, or the child’s defense counsel. However, the referral form must be accompanied by copies of the following supporting documentation: (1) the underlying police report; (2) the underlying complaint; and (3) the court’s stay order or pretrial probation order.
Referral forms may be sent via email to agoyouthdiversion@mass.gov.
Once a submission is successfully delivered, the referrer will receive a confirmation email indicating the AGO’s receipt of the referral. The referral form must be fully completed, signed by the referring individual, and accompanied by copies of the following supporting documentation: (1) the underlying police report; (2) the underlying complaint; and (3) the court’s stay order or pretrial probation order. Kindly note that incomplete referrals may cause delays.
What happens after a referral is submitted to the AGO Youth Diversion Program?
Once a complete referral is received by the Attorney General’s Office, the AGO forwards the referral to the Massachusetts Youth Diversion Program (MYDP) Program Manager at the Department of Youth Services (DYS) who then triages and assigns the matter to a regional Diversion Coordinator. The assigned Diversion Coordinator will contact the parent/guardian to obtain permission for the youth to participate in the program and will schedule a meeting with the youth to review the educational guide, Think Before You Send: Facts on Sexting and Cyberbullying. This meeting is called the “educational session.”
Once the program is completed, a signed Program Completion Form will be provided to the referrer.
What happens if a referral is made to the AGO Youth Diversion Program, but the parent/guardian does not consent for the youth to participate in the program?
Parental consent is required for a referred youth to participate in the AGO Youth Diversion Program. Without parental consent, the youth cannot participate in the program and their case will be returned to the original referrer. Upon the return of a case, the Juvenile Court will decide whether to proceed with the youth's court case. However, it's important to note that, for the purpose of assessing the youth “successful” participation in the program, a return to the referrer should not be considered a negative outcome. The parent/guardian may decide that disputing their children's charges through the court system is in their child’s best interest. These decisions should be made under counsel of a defense attorney.
What type of content is included in the educational curriculum of the AGO Youth Diversion Program?
The curriculum of the program is designed pursuant to G.L. c. 12, § 36(a) to include the following components:
- Legal Consequences: the legal consequences of and penalties for possessing or disseminating visual material in violation of section 29D of chapter 272 and other applicable federal and state laws;
- Nonlegal Consequences: (Social, Physical, Emotional, Mental Health, Career, School): the nonlegal consequences of possessing and disseminating sexual images including, but not limited to, the effect on relationships, loss of educational and employment opportunities and removal, exclusion and expulsion from school programs and extracurricular activities;
- Internet Safety: how the internet may produce long-term and unforeseen consequences for possessing or disseminating sexual images online, including the health of relationships and risk of trafficking;
- Image Digitization: the responsible use of visual material digitization; and
- Important Ripple Effects: the connection between adolescents' possession or dissemination of sexual images and sexual assault, dating violence and bullying.
What happens after a youth successfully completes the AGO Youth Diversion Program?
After the youth completes the educational session with the Diversion Coordinator, the Diversion Coordinator will complete an AGO Program Completion Report and electronically submit a copy of this report to both the Referrer and AGO for filing with the Juvenile Court where the youth’s case is pending. The charge(s) for which the juvenile was referred to the Diversion Program should be dismissed by the Juvenile Court.
What if a youth referred to the AGO Youth Diversion Program fails to complete the Program?
Whether by the Juvenile Court’s own initiative or by a motion of the district attorney, if the Court makes a finding that a youth has failed to complete the AGO Youth Diversion Program, the youth’s case must be brought forward for arraignment and restored to the docket for trial or further proceedings. However, before a Court makes this finding, the youth is entitled to be heard by the Court.
When is directing a youth to enter and complete the AGO Youth Diversion Program mandatory?
It is mandatory for the Juvenile Court to refer to the AGO Youth Diversion Program youth charged with possession, purchase, or dissemination, including by uploading to an internet website, any visual material, as defined in G. L. c. 272, § 31, in violation of § 29B or § 29C. Pursuant to G. L. c. 119, § 54B, referral to the Diversion Program is only mandatory when all of the following elements are present:
- When a charge is filed;
- In a Juvenile Court;
- Complaint on the charge is issued;
- the defendant is under the age of eighteen;
- the charge is based on a violation of G. L. c. 272, §§ 29B, 29C, or 29D;
- § 29B (dissemination with lascivious intent of unlawful images of a child),
- § 29C (knowing purchase or possession of unlawful images of a child), or
- § 29D (knowing possession, purchase, or dissemination, including by uploading to an internet website, of unlawful images of a child in violation of § 29B or § 29C).
- The referral must be made by the Juvenile Court prior to arraignment. The Court may order diversion either with the DA’s agreement or over the DA’s objection*
- *If the DA objects, the Juvenile Courts may request either a probation assessment or an AGO eligibility determination before the court determines its final decision. The Court may still divert a youth to the AGO Youth Diversion Program over the DA’s objection.
Is there a way to refer a youth to the AGO Youth Diversion Program if a diversion is not statutorily mandatory?
Pursuant to G. L. c. 12, § 36(c), the district attorney or court having jurisdiction may refer a delinquent child or an alleged delinquent child to the AGO Youth Diversion Program for violations or alleged violations of laws other than violations of G. L. c. 272, § 29B, 29C or 29D, so long as the district attorney or court thinks that a delinquent child or an alleged delinquent child would benefit from the AGO Youth Diversion Program. The referral process is the same for voluntary referrals. See AGO Referral Form.
Can a youth be criminally charged for reporting an unlawful photo to an appropriate adult or authority?
No. Under G.L. c. 272 § 29D(b)(i), knowingly disseminating a visual material that shows a child in state of nudity or child depicted in sexual conduct in order to report it to a police officer, prosecutor, parent, legal guardian, foster parent, school, teacher, principal, or any other school staff cannot constitute dissemination in violation of the new sexting law. It also will not constitute a crime to allow a police officer, prosecutor, parent, legal guardian, foster parent, school, teacher, principal, or any other school staff access to the visual material for purposes within the agency's, department's or person's position, authority, or capacity.
Can a district attorney’s objection to a referral to the AGO Youth Diversion Program be used in any future proceedings against subject youth?
No. Under G.L. c. 119, § 54(e)(ii), a district attorney's objection against a youth entering into the AGO Youth Diversion Program is not admissible against subject youth in any future proceedings.
Can a failed Massachusetts probation service assessment or AG determination of eligibility for entry into AGO Youth Diversion Program be used against subject youth in any future proceedings?
No. Under G.L. c. 119, § 54(e)(iii), an assessment by the Massachusetts probation service or a determination of eligibility by the AG for entry into AGO Youth Diversion is not admissible against subject youth in any future proceedings.
Can any statement made by the youth or the youth's family during any assessment, determination of eligibility, or hearing by the court to determine whether to divert a youth to the AGO Youth Diversion Program be used against subject youth in any future proceedings?
No. Under G.L. c. 119, § 54(e)(iv), any statement made by the youth or the youth's family during any assessment, determination of eligibility or hearing by the court to determine whether to divert a youth to the AGO Youth Diversion Program is not admissible against subject youth in any future proceedings.
Can youth’s statements or other disclosures made during the stay of proceedings or pretrial probation for entry into the AGO Youth Diversion Program be disclosed to a law enforcement officer (i.e., police officer or a prosecutor) in other charges or investigations against subject youth or codefendant?
No. Under G.L. c. 119, § 54(e)(iv), all statements or other disclosures (or a record thereof) made by subject youth during the stay of proceedings or pretrial probation for entry into the AGO Youth Diversion Program must be forever protected from any law enforcement officer (i.e., police officer or a prosecutor) who is involved in the investigation or prosecution of any charges against subject youth or codefendant.
Can a youth who is adjudicated as a youth offender or delinquent child under G.L. c. 272 § 29D be required to register as a sex offender?
No. Under G.L. c. 272 § 29D(c), no youth shall be required to register with the sex offender board. No data relating to an adjudication based on a violation of G.L. c. 272 § 29D shall be transmitted to the Board.
Can an adjudication as a youth offender or delinquent child under G.L. c. 272 § 29D be expunged?
Yes. Under G.L. c. 272 § 29D(c), a youth who is adjudicated for violating the sexting law as defined under G.L. c. 272 § 29D shall be eligible for expungement of any criminal records of such adjudication.
Can a youth be charged for violating sexting law under G.L. c. 272 § 29D be heard in Superior or District Court?
No. Under G.L. c. 272 § 29D(d), the juvenile court department shall have exclusive jurisdiction of proceedings pursuant to G.L. c. 272 § 29D.
What affirmative defenses can a defendant raise after being charged for violating G.L. c. 272 §§ 29A, 29B, 29C, and/or 29D?
If a defendant is facing charges under G.L. c. 272, § 29D(e) for asking a child to pose unlawfully in an image, or charged with possession, purchase, or dissemination of unlawful images of a child, the following constitutes an affirmative defense: (1) that the image shows the defendant only, or (2) that the defendant was under 18 years old at the time the image was taken, that the subject child was age 16 or older, that the image was created voluntarily with subject’s child’s knowledge, that the subject child sent the image to the defendant, and that the defendant has not shared the image with anyone else.
Is it possible for a youth charged with a 29D offense to additionally be charged with other offenses?
Yes, pursuant to G.L. c. 272, § 29D(f), a 29D offense does not prohibit other prosecution such as for disorderly conduct, public indecency, child pornography, dissemination of harmful matter to a minor, or any other applicable provision of law. Other criminal charges exist in Massachusetts for activities like revenge porn, uploading explicit images of another to a website without consent and causing physical or economic injury or substantial distress; hacking into any ex-partner’s computer or phone; or secretly recording sexual acts or images of another person. The list continues to include other types of criminal harassment scenarios, unlawful threats, blackmail, extortion, identity fraud, violation of stay away from an individual, home, school, or workplace orders, no abuse order, illegal recording, or other violation of privacy laws.