Instruction 7.190, Criminal Model Jury Instructions for Use in the District Court

DISSEMINATION OF A VISUAL IMAGE OF A NUDE OR PARTIALLY

NUDE PERSON OR THE SEXUAL OR INTIMATE PARTS OF A PERSON

OR A CHILD UNDER OR AROUND THEIR CLOTHING

G.L. c. 272, § 105(c)

Use the instruction below where the visual image is alleged to depict a nude or partially nude

person or the sexual or intimate parts of a person under or around their clothing. G.L. c. 272,

§ 105(c), ¶ 1.

Use the instruction beginning on page 6 where the visual image is alleged to depict the sexual

or intimate parts of a child under eighteen under or around their clothing. G.L. c. 272, § 105(c),

¶ 2.

Visual Image Depicting a Nude or Partially Nude Person or the

Sexual or Intimate Parts of a Person Under or Around Their Clothing

G.L. c. 272, § 105(c), ¶ 1

The defendant is charged with dissemination of a visual image

of (a nude or partially nude person) (the sexual or intimate parts of a

person under or around their clothing). To prove the defendant guilty

of this offense, the Commonwealth must prove four things beyond a

reasonable doubt:

First: That the defendant disseminated a visual image of another

person without that person’s consent;

Second: That the visual image depicted (a nude or partially nude

person) (the sexual or intimate parts of a person under or around their

clothing);

Third: That the visual image was obtained illegally; and

Fourth: That the defendant knew that the visual image was

obtained illegally.

To prove the first element, the Commonwealth must prove that

the defendant disseminated a visual image of another person without

that person’s consent. The word “disseminate” means to distribute,

sell, exhibit, display, print, produce, publish, manufacture, import, or

lease.

See G.L. c. 272, § 31. It is sufficient if the image is disseminated solely to the person

depicted, and dissemination does not require receipt by a broad audience or a public or

commercial character. See Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 595-596

(2021); Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 211 (2011).

To prove the second element, the Commonwealth must prove

that the visual image depicted (a nude or partially nude person) (the

sexual or intimate parts of a person under or around their clothing).

General Laws c. 272, § 105(c) penalizes the dissemination of a visual image obtained in

violation of G.L. c. 272, § 105(b), while § 105(b) penalizes the violation of privacy

associated with recording that visual image. Commonwealth v. Cooper, 100 Mass. App.

Ct. 345, 349 (2021). Accordingly, the harm proscribed by § 105(c) is the visual image

itself, as opposed to the conduct of recording the visual image proscribed by § 105(b).

See id. (citing G.L. c. 272, §§ 29A, 29B, 29C, and Commonwealth v. Oakes, 407 Mass.

92, 97 (1990).

(“Partially nude” means the exposure of a person’s genitals,

buttocks, or pubic area, or the exposure of a female breast below a

point immediately above the top of the areola.)

(“Sexual or intimate parts” are the genitals, buttocks, pubic area,

or female breast below a point immediately above the tip of the areola,

whether naked or covered by clothing or undergarments.)

G.L. c. 272, § 105(a).

To prove the third element, the Commonwealth must prove that

the visual image was obtained illegally.

(A visual image of a nude or partially nude person was obtained

illegally when the visual image was:

• Intentionally secretly recorded using a camera, video camera,

cellular phone, computer, or other electronic device;

• Recorded without the person’s knowledge and consent; and

• Recorded under circumstances where the person had a

reasonable expectation of privacy in not being recorded.)

See G.L. c. 272, § 105(b), ¶ 1; Instruction 6.530 (Secretly Photographing or Videotaping

a Nude or Partially Nude Person).

(A visual image of the sexual or intimate parts of a person

under or around their clothing was obtained illegally when the

visual image was:

• Intentionally secretly recorded using a camera, video camera,

cellular phone, computer, or other electronic device;

• Recorded without the person’s knowledge and consent;

• Recorded to view or attempt to view the person’s sexual or

intimate parts; and

• Recorded under circumstances where a reasonable person

would believe that their sexual or intimate parts would not have

been visible to the public.)

See G.L. c. 272, § 105(b), ¶ 2; Instruction 6.535 (Secretly Photographing, Videotaping, or

Electronically Surveilling a Person’s Intimate Parts Under or Around Clothing).

In determining whether the visual image was intentionally

secretly recorded, consider that we must often decide what was

intended based on the actions of others. You are to decide whether

the visual image was intentionally secretly recorded from the

evidence, together with any reasonable inferences that you draw from

it.

To prove the fourth element, the Commonwealth must prove that

the defendant knew that the visual image was obtained illegally.

(This means that the Commonwealth must prove that the

defendant knew that the visual image of a nude or partially nude

person was intentionally secretly recorded, without the person’s

knowledge and consent, and under circumstances where the person

had a reasonable expectation of privacy in not being recorded.)

(This means that the Commonwealth must prove that the

defendant knew the visual image of the sexual or intimate parts

of a person under or around their clothing was intentionally

secretly recorded, without the person’s knowledge and consent,

in order to view or attempt to view the person’s sexual or

intimate parts, and under circumstances where a reasonable

person would believe that their sexual or intimate parts would

not have been visible to the public.)

To determine whether the defendant had this knowledge,

you are required to make a decision about the defendant’s state

of mind. It is obviously impossible to look directly into a

person’s mind. But in our everyday affairs, we often look to the

actions of others to decide what their state of mind is. You may

examine the defendant’s actions and words, and all the

surrounding circumstances, to help you determine the extent of

the defendant’s knowledge.

If the Commonwealth has proven all four elements beyond

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

Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not

guilty.

Visual Image Depicting the Sexual or Intimate Parts

of a Child Under Eighteen Under or Around Their Clothing

G.L. c. 272, § 105(c), ¶ 2

The defendant is charged with dissemination of a visual image

of the sexual or intimate parts of a child under eighteen under or

around their clothing. To prove the defendant guilty of this offense,

the Commonwealth must prove four things beyond a reasonable

doubt:

First: That the defendant disseminated a visual image of a child

who was under the age of eighteen;

Second: That the visual image depicted the sexual or intimate

parts of the child under or around their clothing;

Third: That the visual image was obtained illegally; and

Fourth: That the defendant knew that the visual image was

obtained illegally.

To prove the first element, the Commonwealth must prove that

the defendant disseminated a visual image of a child who was under

the age of eighteen. The word “disseminate” means to distribute,

sell, exhibit, display, print, produce, publish, manufacture, import, or

lease.

See G.L. c. 272, § 31. It is sufficient if the dissemination is made solely to the person

depicted in the image, and dissemination does not require receipt by a broad audience or

a public or commercial character. See Commonwealth v. Ubeda, 99 Mass. App. Ct. 587,

595-596 (2021); Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 211 (2011).

To prove the second element, the Commonwealth must prove

that the visual image depicted the sexual or intimate parts of the child

under or around their clothing.

General Laws c. 272, § 105(c) penalizes the dissemination of a visual image obtained in

violation of G.L. c. 272, § 105(b), while § 105(b) penalizes the violation of privacy

associated with recording that visual image. Commonwealth v. Cooper, 100 Mass. App.

Ct. 345, 349 (2021). Accordingly, the harm proscribed by § 105(c) is the visual image

itself, as opposed to the conduct of recording the visual image proscribed by § 105(b).

See id. (citing G.L. c. 272, §§ 29A, 29B, 29C, and Commonwealth v. Oakes, 407 Mass.

92, 97 (1990).

“Sexual or intimate parts” are the genitals, buttocks, pubic area,

or female breast below a point immediately above the tip of the areola,

regardless of whether those parts are naked or covered by clothing or

undergarments.

G.L. c. 272, § 105(a).

To prove the third element, the Commonwealth must prove

that the visual image was obtained illegally. A visual image of

the sexual or intimate parts of a child under or around their

clothing was obtained illegally when the image was:

• Intentionally secretly recorded using a camera, video

camera, cellular phone, computer, or other electronic

device,

• Recorded to view or attempt to view the child’s sexual or

intimate parts, and

• Recorded under circumstances where a reasonable person

would believe that their sexual or intimate parts would not

have been visible to the public.

See G.L. c. 272, § 105(b), ¶ 3; Instruction 6.535 (Secretly Photographing, Videotaping, or

Electronically Surveilling a Person’s Intimate Parts Under or Around Clothing).

In determining whether the visual image was intentionally

secretly recorded, consider that we must often decide what was

intended based on the actions of others. You are to decide whether

the visual image was intentionally secretly recorded from the

evidence, together with any reasonable inferences that you choose to

draw from it.

To prove the fourth element, the Commonwealth must prove that

the defendant knew that the visual image was obtained illegally.

This means that the Commonwealth must prove that the

defendant knew the visual image of the sexual or intimate parts

of a child under or around their clothing was intentionally

secretly recorded, in order to view or attempt to view the child’s

sexual or intimate parts, and under circumstances where a

reasonable person would believe that their sexual or intimate

parts would not have been visible to the public.

To determine whether the defendant had this knowledge,

you are required to make a decision about the defendant’s state

of mind. It is obviously impossible to look directly into a

person’s mind. But in our everyday affairs, we often look to the

actions of others to decide what their state of mind is. You may

examine the defendant’s actions and words, and all the

surrounding circumstances, to help you determine the extent of

the defendant’s knowledge.

If the Commonwealth has proven all four elements beyond

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

Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not

guilty.

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