Dissemination of Matter Harmful to a Minor
It is a felony in Massachusetts to disseminate to a minor any matter that is harmful to a minor (or to possess such matter with the intent to distribute it to a minor). A defendant who is convicted of violating this law is required to register as a sex offender.
To satisfy the elements of this statute, the Commonwealth must prove beyond a reasonable doubt that the defendant: (1) knowingly; (2) disseminated or possessed with intent to disseminate; (3) matter; (4) which is harmful to a minor; (5) to a minor.
Matter is defined as visual representation, printed or handwritten material, sound recording or live performance including magazines, books, pamphlets, movies, pictures, phonographic records, photographs, statues, figures, dances, and plays. The Supreme Judicial Court has ruled that “matter” does not include written words sent back and forth on a computer or smart phone.
Matter is harmful if it constitutes obscenity. Matter is obscene if:
(1) It appeals to the prurient interest of an average person living in the county where the alleged crime occurred (while applying contemporary standards);
(2) It describes or depicts sexual behavior in a patently offensive way; and
(3) It lacks serious artistic, literary, scientific, or political value.
Even if matter is not obscene, it still can be considered harmful to minors if:
(1) It represents or describes nudity, sexual excitement, or sexual behavior that will predominantly appeal to prurient interests of minors;
(2) It is contrary to the prevailing standards of adults in the county where the alleged crime occurred (with respect to whether the matter is suitable for minors); and
(3) It does not have serious artistic, literary, scientific, or political value for minors.
Prurient interest means a morbid or shameful interest in sex or nudity which is repugnant to the prevailing moral standards.
Representations of nudity alone do not qualify under this statute, unless they appeal to a prurient interest.
The First Amendment to the United States Constitution protects freedom of speech and expression. Therefore, if the depictions of nudity or sexual conduct in any way advocate ideas that contribute to scientific discussion, or contribute to works of literature and art, they are constitutionally protected.
The definitions provided on this page are the same definitions judges give to jurors who are considering these charges. They are almost impossible to understand. As a practical matter, this charge is most often present in cases of child abuse, where the perpetrator is sexually abusing a minor in a way that involves showing the minor hardcore pornographic movies. Supreme Court Justice Potter Stewart once wrote, when trying to define obscenity, “I know it when I see it.” Massachusetts jurors likely use a similar calculation in trying to decide if matter is obscene or otherwise harmful to minors.
While a felony conviction is serious enough on its own, the sex offender registration requirement for all defendants convicted of this statute presents a permanent and significant hardship. For this reason, if you are charged with this crime and there is any viable defense at all, you ought to consider fighting the case in court with the assistance of an experienced criminal defense attorney.