Instruction 6.800, Criminal Model Jury Instructions for Use in the District Court

DISTRIBUTION OF PARTIALLY NUDE, NUDE, OR SEXUAL IMAGES

G.L. c. 265, § 43A(b)(2)

The judge should inquire of the prosecutor as to which theory or theories the

Commonwealth intends to pursue and instruct on one or both accordingly.

The defendant is charged with distributing visual material which

shows a person who is nude, partially nude, or engaged in sexual

conduct.

Intentional Conduct

To prove the defendant guilty of this offense, the

Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant knowingly distributed visual material;

Second: That the visual material depicted [the alleged victim] who was

(nude) (partially nude) (engaged in sexual conduct);

Third: That the distribution caused [the alleged victim] physical injury,

economic injury, or substantial emotional distress; and

Fourth: That the defendant distributed it with the specific intent

to harm, harass, intimidate, threaten, coerce, or cause substantial

emotional distress to [the alleged victim].

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knowingly distributed

visual material. This requires you to decide both whether the

defendant distributed visual material and what the defendant’s state

of mind was at the time. In this case, you may examine the

defendant’s actions and words, and all of the surrounding

circumstances, to help you determine the defendant’s state of mind

and the extent of the defendant’s knowledge at that time.

You should consider all of the evidence, and any reasonable

inferences you draw from the evidence, in determining whether the

Commonwealth has proved beyond a reasonable doubt that the

defendant acted with the knowledge that they were distributing the

visual material.

Visual material includes a photograph, film, video or digital

image or recording, whether produced by electronic, mechanical or

other means, or any part, representation or reproduction of a

photograph, film, video or digital image or recording.

[In cases where digitization is alleged]: This includes visual

material produced by digitization. Digitization means the

creation or alteration of visual material including, but not

limited to, through the use of computer-generated images,

in a manner that would falsely appear to a reasonable

person to be an authentic representation of the person

depicted.

To distribute visual material means to give, sell, transfer,

disseminate, publish, upload, circulate, broadcast or engage in any

other form of transmission, electronic or otherwise of the visual

material.

To publish means (i) to disseminate an image with the intent that

it be made available by any means to any person or other legal entity;

(ii) to disseminate an image with the intent that it be sold by another

person or legal entity; (iii) to post, present, display, exhibit, circulate,

advertise or allow access to an image by any means so as to make

such image available to the public; or (iv) to disseminate an image

with the intent that it be posted, presented, displayed, exhibited,

circulated, advertised or made accessible by any means and available

to the public.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the visual material depicted [the alleged

victim] (nude) (partially nude) (engaged in sexual conduct).

The alleged victim must either be identifiable in the visual

material or have been identified by the defendant. A person is

identifiable if they are recognizable from the visual material itself or

from information offered in connection with the visual material.

A person is partially nude when the (fully uncovered buttocks)

(all or part of the human genitals) (all or part of the female nipple or

areola) is exposed.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the distribution caused [the alleged victim]

physical injury, economic injury or substantial emotional distress. By

substantial emotional distress, I mean distress that is considerable, of

importance, solid and real. The offending conduct must be such as

would produce a considerable or significant amount of emotional

distress in a reasonable person; it must be something markedly

greater than the level of uneasiness, nervousness, unhappiness or

the like which is commonly experienced in day-to-day living.

The term “substantial emotional distress” is defined as “considerable in amount”, or “of real

worth and importance.” Commonwealth v. Robinson, 444 Mass. 102, 107-108 (2005)

(“emotional distress that is merely trifling or passing is not enough to satisfy this element,

but must be markedly greater than that commonly experienced as part of ordinary living”).

See also Commonwealth v. Walters, 472 Mass. 680, 692 (2015); Commonwealth v. Cullen,

79 Mass. App. Ct. 618, 621-622 (2011); Commonwealth v. Paton, 63 Mass. App. Ct. 215,

221 (2005); Commonwealth v. Clemens, 61 Mass. App. Ct. 915, 916 (2004).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that: the defendant distributed the visual

material with the specific intent to harm, harass, intimidate, threaten,

coerce or cause substantial emotional distress to [the alleged victim].

To prove the defendant’s intent, the Commonwealth must prove

the purpose or objective of any behavior of the defendant. In this

case, you may examine the defendant’s actions and words, and all of

the surrounding circumstances, to help you determine what their

intent was at the time they distributed it.

If the Commonwealth has proved all four elements beyond a

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

Commonwealth has not proved one or more of these four elements

beyond a reasonable doubt, you must return a verdict of not guilty.

Reckless Conduct

[If both intentional and reckless conduct are alleged]

There is a second way in which a person may be guilty of

distributing material of a person who is (nude) (partially nude)

(engaged in sexual conduct). Instead of intentional conduct, it arises

from reckless conduct.

[If only reckless conduct alleged]

To prove the defendant guilty of this offense, the

Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant knowingly distributed visual material;

Second: That the visual material depicted [the alleged victim] who was

(nude) (partially nude) (engaged in sexual conduct);

Third: That the distribution caused [the alleged victim] physical injury,

economic injury, or substantial emotional distress; and

Fourth: That the defendant distributed it with reckless disregard

for:

1) the likelihood that [the alleged victim] would suffer harm,

harassment, intimidation, threat, coercion or substantial

emotional distress;

2) [the alleged victim’s] lack of consent to the distribution of the

visual material; and

3) [the alleged victim’s] reasonable expectation that the visual

material would remain private.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant knowingly distributed

visual material. This requires you to decide both whether the

defendant distributed visual material and what the defendant’s state

of mind was at the time. In this case, you may examine the

defendant’s actions and words, and all of the surrounding

circumstances, to help you determine the defendant’s state of mind

and the extent of the defendant’s knowledge at that time.

You should consider all of the evidence, and any reasonable

inferences you draw from the evidence, in determining whether the

Commonwealth has proved beyond a reasonable doubt that the

defendant acted with the knowledge that they were distributing the

visual material.

Visual material includes a photograph, film, video or digital

image or recording, whether produced by electronic, mechanical or

other means, or any part, representation or reproduction of a

photograph, film, video or digital image or recording.

[In cases where digitization is alleged]: This includes visual material

produced by digitization. Digitization means the creation or

alteration of visual material including, but not limited to,

through the use of computer-generated images, in a manner

that would falsely appear to a reasonable person to be an

authentic representation of the person depicted.

To distribute visual material means to give, sell, transfer,

disseminate, publish, upload, circulate, broadcast or engage in any

other form of transmission, electronic or otherwise of the visual

material.

To publish means (i) to disseminate an image with the intent that

it be made available by any means to any person or other legal entity;

(ii) to disseminate an image with the intent that it be sold by another

person or legal entity; (iii) to post, present, display, exhibit, circulate,

advertise or allow access to an image by any means so as to make

such image available to the public; or (iv) to disseminate an image

with the intent that it be posted, presented, displayed, exhibited,

circulated, advertised or made accessible by any means and available

to the public.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the visual material depicted [the alleged

victim] (nude) (partially nude) (engaged in sexual conduct). The alleged

victim must either be identifiable in the visual material or have been

identified by the defendant. A person is identifiable if they are

recognizable from the visual material itself or from information

offered in connection with the visual material.

A person is partially nude when the (fully uncovered buttocks)

(all or part of the human genitals) (all or part of the female nipple or

areola) is exposed.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the distribution caused [the alleged victim]

physical injury, economic injury or substantial emotional distress. By

substantial emotional distress, I mean distress that is considerable, of

importance, solid and real. The offending conduct must be such as

would produce a considerable or significant amount of emotional

distress in a reasonable person; it must be something markedly

greater than the level of uneasiness, nervousness, unhappiness or

the like which is commonly experienced in day-to-day living.

The term “substantial emotional distress” is defined as “considerable in amount”, or “of real

worth and importance.” Commonwealth v. Robinson, 444 Mass. 102, 107-108 (2005)

(“emotional distress that is merely trifling or passing is not enough to satisfy this element, but

must be markedly greater than that commonly experienced as part of ordinary living”). See

also Commonwealth v. Walters, 472 Mass. 680, 692 (2015); Commonwealth v. Cullen, 79

Mass. App. Ct. 618, 621-622 (2011); Commonwealth v. Paton, 63 Mass. App. Ct. 215, 221

(2005); Commonwealth v. Clemens, 61 Mass. App. Ct. 915, 916 (2004).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant distributed the visual

material with reckless disregard for:

1) the likelihood that [the alleged victim] would suffer harm, harassment,

intimidation, threat, coercion or substantial emotional distress;

2) [the alleged victim’s] lack of consent to the distribution of the visual

material; and

3) [the alleged victim’s] reasonable expectation that the visual material

would remain private.

To prove that the defendant acted recklessly, it is not enough for

the Commonwealth to prove that the defendant acted in a way that a

reasonably careful person would not. The Commonwealth must

prove that the defendant knew, or should have known the following

three things:

First, that such actions were very likely to cause [the alleged victim] to

suffer harm, harassment, intimidation, threat, coercion or substantial

emotional distress;

Second, that [the alleged victim] did not consent to this distribution of

the visual material. Consent to the creation of the visual material is

distinct from and not the same as consent to its distribution; and

Third, that [the alleged victim] had a reasonable expectation that the

visual material would remain private. Whether such an expectation is

reasonable under the circumstances of this case is to be measured by

the evidence and common understanding and practices.

If the Commonwealth has proved all four elements beyond a

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

Commonwealth has not proved one or more of these four elements

beyond a reasonable doubt, you must return a verdict of not guilty.