By Christine M. Williams
Anchor Correspondent
BOSTON — In a “very strict” interpretation of the Commonwealth’s laws earlier this month, the Supreme Judicial Court ruled that sexually explicit electronic material is not illegal.
Philip D. Moran, president of the Pro-Life Legal Defense Fund, said the February 5 ruling came “out of left field.” Moran is a former assistant district attorney for Essex County.
“This is a very strict interpretation of the law,” said Moran, who noted the legislative intent of the law was to protect children from sexual exploitation.
As the law is written, sexually explicit materials distributed to minors that are handwritten or printed are illegal. The statute does not specifically mention electronic transmitted text or online conversations.
Massachusetts General Law Chapter 272, Section 28 lays out the penalties for those who distribute “any matter harmful to minors,” “as defined in Section 31.” Matter is then defined in Section 31 as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.”
The unanimous Supreme Judicial Court ruling reversed the conviction of Matt H. Zubiel who had been found guilty of sending sexually explicit online messages to an undercover police officer posing as a 13-year-old girl. In 2006, Deputy Sheriff Melissa Marino posed as a minor and then participated in online conversations with Zubiel. He asked her to send him a nude photo of herself, inquired about her sexual experience and told her he would teach her “everything.”
Zubiel was arrested outside the apartment building Marino told him she lived at. He admitted to wanting to have sex with the person he had been contacting online, whom he believed was a minor, and had portions of their online conversations on his computer.
The prosecution argued that Zubiel’s words fell under the “visual representation” cited in the statute. The SJC found that the law was referring to pictures and not text. The court further explained that such communication could not fall under handwritten or printed material either.
In its ruling, the court said, “While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in Section 31 do not do so. If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of ‘matter’ under Section 31, it is for the Legislature, not the court, to do so.”
In the footnotes, the court mentioned that in 2000 the Legislature considered amending the definition of matter to include “computer-generated writing, whether printed or electronically transmitted” but did not do so.
Moran said the Legislature should now move swiftly to close this loophole.
“There is no other statute to protect children from this type of activity,” he said.
On February 9 Sen. Cynthia Stone Creem, D-Newton, filed legislation that would add text messages, emails and any other electronic communication to the statute. The bill is called “An act to protect children from sexual abuse and exploitation.”
Gov. Deval Patrick, House Speaker Robert A. DeLeo and House chairman of the Joint Committee on the Judiciary Eugene L. O’Flaherty have all said they support such a measure.
Michael Avitzur, counsel for Sen. Creem, said the court’s ruling was “unexpected” and left a gaping hole in the law.
“It was felt that this was already covered,” he said.
The SJC’s ruling baffled many people throughout the Commonwealth.
Arlene McNamee, executive director of Catholic Social Services in the Diocese of Fall River, said of the ruling, “It leaves you a little speechless.”
McNamee said suggestive text sent to minors needs to be illegal, especially considering that text messaging is “a form of life to the new generation.” She added that any kind of solicitation of minors should not be permitted.
Kris Mineau, president of the Massachusetts Family Institute, said that in this ruling the SJC has shown insensitivity to values, particularly the protection of children. The logic of the court defies “normal human logic.”
“This court considers to run roughshod over our most vulnerable citizens, our children,” he said. “They are coming up with ludicrous rulings.”