Massachusetts law about sex

Laws, cases, and web sources on the law of sex in Massachusetts.
  • For more information about specific topics relating to sex crimes (rape, child abuse, pornography, sex offenders, etc.), see Law about sex and sex crimes.

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Table of Contents

Web sources

Healthy relationships, sexuality and disability, Mass. Dept. of Public Health (DPH) and the Mass. Dept. of Developmental Services (DDS).
"Learning to access sex education and talk openly and honestly about sexual health is an important part of growing up. Young people who understand their own bodies, rights, and experiences may find it easier to communicate their needs and have them respected. All youth deserve information and support to get the knowledge, attitudes, behaviors and skills they need to stay healthy in relationships and protected from abuse."

Healthy relationships tools and resources, Governor's Council to Address Sexual Assault and Domestic Violence and the Mass. Dept. of Public Health (DPH).
Online resources for youth.

Promoting healthy relationships for youth in Massachusetts, Governor's Council to Address Sexual Assault and Domestic Violence and the Mass. Dept. of Public Health (DPH).
Resources for parents, teachers, coaches, and anyone interested in promoting healthy friendships or relationships among youth.

Adultery

It is not against the law for a married person to have sex with someone other than their spouse. However, adultery can still play a role in divorce proceedings.

The primary criminal adultery law was repealed by St.2018, c.155, § 2.

But the following law still exists:

MGL. c.208, § 40 Cohabitation after divorce

Bestiality

It is against the law to have sexual contact with an animal.

MGL c.272, § 34 Crime against nature

MGL c.272, § 77C Sexual contact with animal

Comm. v. J.A., a juvenile, 478 Mass. 385 (2017)
A juvenile cannot be indicted as a youthful offender based on charges of cruelty to animals and bestiality, "given that the language in G. L. c. 199, § 54, the youthful offender statute, allowing a juvenile to be tried as a youthful offender for an offense involving the infliction of "serious bodily harm," does not apply to animal as well as human victims."

Bigamy

It is against the law to be married to more than 1 person.

MGL c.272, § 15 Polygamy

MGL c.207, § 4 Polygamy prohibited; exception

MGL c.207, § 6 Marriage during existence of former marriage; validity

Children

New sex ed: What young people need to know about sex laws by Karen Goldberg.
Explains the law in Massachusetts regarding young people and sex, including information on what specific acts are included in the legal definition of sexual intercourse for the indecent assault law and rape statute, the legal age of consent, and what constitutes consent. See also the infographic included with this blog post.

It is against the law to have sex with, or to touch in a sexual way, a child under 14. 

MGL c.265, § 13B Indecent assault and battery on child under 14; penalties

MGL c.265, § 13B-1/2 Commission of indecent assault and battery on a child under the age of 14 during commission of certain offenses or by mandated reporters; penalties

MGL c.265, § 13B-3/4 Commission of indecent assault and battery on a child under the age of 14 by certain previously convicted offenders; penalties

It is against the law to have sex with anyone under 16 years old. You can't have sex with someone under 16, even if you are also under 16.

MGL c.265, § 23 Commonly known as the "Statutory Rape Law"; rape and abuse of child

MGL c.265, § 23A Rape and abuse of child aggravated by age difference between defendant and victim or by when committed by mandated reporters; penalties

MGL c.265, § 23B Rape and abuse of child by certain previously convicted offenders; penalties

MGL c.265, § 26C Definition of ''entice''; enticement of child under age 16; punishment

MGL c.272, § 35A  Unnatural and lascivious acts with child under 16

Commonwealth v. Bernardo B., 453 Mass. 158 (2009)
Where a boy under 16 was charged for statutory rape for sexual activity with girls under 16, and only the boy was charged, the boy was entitled to discovery of statistical information relevant to his claim of selective prosecution.

Commonwealth v. Miller, 385 Mass. 521 (1982)
The offense of statutory rape, G. L. c. 265, § 23, may be committed with or without any knowledge on the defendant's part of the age of the victim.

Commonwealth v. Elder, 389 Mass. 743 (1983)
"Consent is not a defense to a charge of statutory rape."

Commonwealth v. Knap, 412 Mass. 712 (1992)
"The only elements the Commonwealth must prove are (1) sexual or unnatural sexual intercourse with (2) a child under sixteen years of age".

Commonwealth v. Wilbur W., 479 Mass. 397 (2018)
Discusses the prosecution of statutory rape where both the victim and defendant are under 16.

E.C.O. v. Compton, 464 Mass. 558 (2013)
"A person sixteen years of age or older is legally capable of 'consenting' to sexual intercourse. See G.L. c. 265, § 23; G.L. c. 277, § 39."

Inducing person under 18 to have sexual intercourse is against the law, but this law is rarely enforced.

MGL c.272, § 4 Inducing person under 18 to have sexual intercourse

Consent

"Consent" to sex is not defined in Massachusetts laws.

Several crimes require lack of consent, though, including rape and indecent assault and battery. 

Fornication

It is not against the law for unmarried consenting adults to have sex.

The old law was repealed by St.2018, c.155, § 2

Incest

It is against the law to have sex with a relative who is:

  • your mother
  • your father
  • your grandmother
  • your grandfather
  • your daughter 
  • your son
  • your granddaughter
  • your grandson
  • your sister
  • your brother
  • your niece
  • your nephew
  • your aunt
  • your uncle

MGL c.272, § 17 Incestuous marriage or sexual activities

Commonwealth v. Rahim, 441 Mass. 273 (2004)
"We conclude that 'consanguinity' is a necessary element of the crime of incest, and that the incest statute makes criminal only relationships between persons related by blood or adoption, not other relationships prohibited by the marriage statute, G.L. c. 207, §§ 1 and 2."

Liability for injury during consensual sex

Assault and battery during sex

Comm. v. Carey, 463 Mass. 378 (2012)
Consent is not a defense to assault and battery with a dangerous weapon, even if it happens during consensual sexual activity. The defense had argued that the SJC case of Commonwealth v. Appleby, 380 Mass. 296 (1980), which held that consent was not a defense to assault and battery in a sadomasochistic encounter, was no longer valid in light of the Supreme Court case Lawrence v. Texas, 539 US 558 (2003), which held that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

The court disagreed, quoting Appleby: “The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another …) does not prevent the State from protecting its citizens against physical harm.”

See also:

No assault and battery

Doe v. Moe, 63 Mass. App. Ct. 516 (2005)
The Appeals Court defines the standard of care required in sexual encounters. In this case, one party was injured during consensual sexual intercourse, and sued the other. The court ruled, “While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.”

Necrophilia

Neither Massachusetts nor federal law explicitly says you can't have sex with a dead body, but Massachusetts courts have ruled regarding rape charges in connection with sex with a dead body.

Comm vs. Waters, 420 Mass. 276 (1995)
An individual was convicted of aggravated rape after having sex with a deceased individual. The court stated that "The evidence certainly warranted a finding beyond a reasonable doubt that the defendant had had sexual intercourse with the victim without her consent… In the circumstances of one continuous event, it does not matter whether the victim's death preceded or followed the sexual attack."

See also:

Tyler T. Ochoa and Christine Jones, Defiling the dead: Necrophilia and the law, 18 Whittier L. Rev.539 (1997).

Prostitution

It is against the law to have sex for money, or to profit from someone else having sex for money (pimping).

MGL c.272, § 2 Enticing away a person for prostitution or sexual intercourse

MGL c.272, § 4A Inducing minor into prostitution; penalties

MGL c.272, § 4B Living off or sharing earnings of minor prostitute; penalties

MGL c.272, § 7 Support from, or sharing, earnings of prostitute; commonly known as the pimping law

  • Comm. v. Brown, 481 Mass. 77 (2018)
    "G. L. c. 272, § 7, is constitutional, as we construe it to target those who, with the intent to profit from prostitution, live or derive support or maintenance from, or share in the earnings or proceeds of, the known prostitution of others....In short, pimping -- which we define as knowingly and intentionally profiting from the prostitution of another -- is what the Legislature proscribed when enacting the statute that is now G. L. c. 272, § 7."

MGL c.272, § 8 Soliciting for prostitute

MGL c.272, § 12 Procuring person to practice, or enter a place for, prostitution; employment office procuring person

MGL c.272, § 13 Detaining, or drugging to detain, person in place for prostitution

MGL c.272, § 53A Engaging in sexual conduct for a fee; engaging in sexual conduct with child under age 18 for a fee; penalties

Sexually transmitted diseases (STD)

There is no law that says people with STDs can't have sex, but there are other laws about STDs.

MGL c.111, § 119 Records pertaining to venereal diseases
Law stating that STD records are not public records.

MGL c.111, § 121 Treatment of venereal diseases or pulmonary tuberculosis in public charitable or penal institutions; expenses
Law outlining the treatment of inmates with STDs.

MGL c.112, § 12F Emergency treatment of minors
Law stating minors can consent to testing and treatment for STDs.

MGL c.265, § 22B(f) Rape of a child during commission of certain offenses or by use of force; penalties
Law that increases the penalty for rape of a child by force if the defendant knew or should have known that he had an STD that could infect the victim.

Doe v. Moe, 63 Mass. App. Ct. 516 (2005)
The general rule that there is no legal duty of reasonable care during sex may not apply to the negligent transmission of an STD. 

Sodomy

Anal sex is not against the law.

These laws are on the books, but their use was limited by the courts:

MGL c.272, § 34 Crime against nature
Law outlining crime against nature done with people or animals. The use of this law was restricted by Gay & Lesbian Advocates & Defenders v. AG, 436 Mass. 132 (2002).

"Our holdings in the Balthazar and Ferguson cases concerning acts conducted in private between consenting adults extend to § 34, as well." [private consenting acts will not be prohibited].

MGL c.272, § 35 Unnatural and lascivious acts
Law outlining unnatural and lascivious acts with people. The use of this law was restricted by Commonwealth v. Balthazar, 366 Mass. 298 (1974).

  • Commonwealth v. Balthazar, 366 Mass. 298 (1974)
    The "unnatural and lascivious acts" statute has been held to include public fellatio and oral-anal contact.. "must be construed to be inapplicable to private, consensual conduct of adults."

Lawrence v. Texas, 539 US 558 (June 2003)
Texas sodomy law ruled unconstitutional by US Supreme Court.

History of Sodomy Laws in Massachusetts, Gay and Lesbian Archives of the Pacific Northwest, 2004.
Traces Mass. laws from 1620-2004.

Contact   for Massachusetts law about sex

Last updated: May 20, 2024

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