Massachusetts G.L. c. 272, § 29C: Knowing Purchase or Possession of Visual Material of Child Depicted in Sexual Conduct

Massachusetts General Laws Chapter 272, Section 29C makes it a crime to knowingly purchase or possess any visual image constituting a lewd exhibition of a child or of a child actually or by suggestion engaged in any sexual or sexually suggestive act. The statute punishes any person who:

knowingly purchases or possesses a negative, slide, book, magazine, film, videotape, photograph or similar visual reproduction, or depiction by computer, of any child whom the person knows or reasonably should know to be under the age of 18 years of age and such child is:

1. actually or by simulation engaged in any act of sexual intercourse with any person or animal;
2. actually or by simulation engaged in any act of sexual contact involving the sex organs of the child and the mouth, anus or sex organs of another person or animal;
3. actually or by simulation engaged in any act of masturbation;
4. actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal;
5. actually or by simulation engaged in any act of excretion or urination within a sexual context;
6. actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or
7. depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks, or if such person is female, a fully or partially developed breast of the child

[where the person has] knowledge of the nature of the content thereof…

Under the statute, the Commonwealth must prove, beyond a reasonable doubt, each of the following:

• The defendant knowingly possessed or purchased the image;
• The image is of a child under the age of eighteen who is depicted as engaging in any of the acts listed in subsections (i) through (vii) above;
• The defendant knew or reasonably should have known that the child in the image was under eighteen years old; and
• The defendant knew about the nature or content of the image.

Videos or photographs of a child that are sexually suggestive, if found on a defendant’s computer, on his or her cell phone, or otherwise within his or her possession, may result in charges under the statute, even if the child created the image and voluntarily provided it to the defendant him or herself.

If charged with possession of or purchase of visual material of a child in a state of nudity or sexual conduct, a defendant might also faces charges under M.G.L. c. 272, Section 29A (posing a child in a state of nudity or sexual conduct), or M.G.L. c. 272, Section 29B (disseminating visual material of a child depicted in sexual conduct).

If there is evidence that the defendant did not have knowledge of the image, the ability to exercise control over the image (either directly or indirectly through another person), or the intent to exercise control over the image, then the defendant may have a significant defense to the “possession” and “knowledge” elements of the crime. Additionally, that the image contains nudity is not enough for a conviction; the image must be of a child engaged in one of the activities listed in the statute. Further, the circumstances under which the police learned that the defendant was potentially in possession of unlawful images (i.e., through a coerced confession or through a warrantless search of the defendant’s cell phone images) may result in suppression of evidence before the case is brought to trial.

A person convicted of knowing possession or purchase of unlawful images under this statute may be punished by:

• Imprisonment in the state prison for up to five years;
• Imprisonment in a jail or house of correction for up to 2.5 years;
• A fine between $1,000 and $10,000; or
• Both a fine and imprisonment, the extent of which will depend upon whether this is the defendant’s first offense, second offense, or third or subsequent offense.

Charges involving possession of unlawful images of a child are serious, and can have substantial consequences if not defended aggressively. If you or someone you know are facing such charges, contact the Law Offices of Stephen Neyman, P.C. today at 617-263-6800 or online. Attorney Neyman has the experience and skill to provide clients with the best possible representation.