Instruction 6.530, Criminal Model Jury Instructions for Use in the District Court

SECRETLY PHOTOGRAPHING OR VIDEOTAPING

A NUDE OR PARTIALLY NUDE PERSON

G.L. c. 272, § 105(b), ¶ 11

1 This instruction applies to an allegation that the person photographed or videotaped was nude or partially nude.

See Commonwealth v. Wassilie, 482 Mass. 562 (2019). Allegations that the defendant photographed, videotaped, or

electronically surveilled a person’s intimate parts under or around their clothing must be brought pursuant to G.L. c.

272, § 105(b), ¶ 2 (adult), or ¶ 3 (person under eighteen). Id.

The defendant is charged with secretly (photographing)

(videotaping) (electronically surveilling) a nude or partially nude

person. In order to prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant willfully (photographed) (videotaped)

(electronically surveilled) the alleged victim;

Second, That the defendant did so without the alleged victim’s

knowledge and consent;

Third: That the defendant intended to secretly conduct or hide

such activity;

Fourth, the the alleged victim was nude or partially nude; and

Fifth, That the alleged victim had a reasonable expectation of privacy

in not being so (photographed) (videotaped) (electronically

surveilled).

The term “electronically surveils” means “to view, obtain or

record a person’s visual image by the use or aid of a camera, cellular

or other wireless communication device, computer, telephone or

other electronic device.”2

2 G.L. c. 272, § 105(a).

The Commonwealth must also prove that the defendant acted

willfully when recording or viewing. This requires you to make a

decision about the defendant’s state of mind at the time – whether his

(her) actions were intentional and not accidental or due to

inadvertence or inattention.3

3 Definition of “willful” from Commonwealth v. Bohmer, 374 Mass. 368, 377 (1978).

To prove the second element, the Commonwealth must prove

that the alleged victim did not know of or consent to the surveillance.

To prove the third element, the Commonwealth must prove that

the defendant intended to secretly conduct or hide such activity. A

person’s intent is his or her purpose or objective.

This requires you to make a decision about the defendant’s state of

mind at that time. In our everyday affairs, we often must decide from

the actions of others what their state of mind is. You should consider

all the evidence, and any reasonable inferences you draw from the

evidence, in determining whether the defendant acted with the intent to

secretly conduct or hide his (her) activity.

To prove the fourth element, the Commonwealth must prove that

the alleged victim was nude or partially nude. One is partially nude when

the genitals, buttocks, pubic area or female breast below a point

immediately above the top of the areola is exposed. The “areola” is

the area of dark-colored skin on the breast that surrounds the nipple.

To prove the fifth element, the Commonwealth must prove the

alleged victim had a reasonable expectation of privacy in not being

(photographed) (videotaped) (electronically surveilled). Whether such

an expectation is reasonable under the circumstances of this case is

to be measured by common understanding and practices.

If the Commonwealth proved all five elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth failed to prove any element beyond a reasonable

doubt, you must find the defendant not guilty.