Section 29D: Possession, purchase or dissemination by minor of visual material of child in state of nudity or depicted in sexual conduct; punishment
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Section 29D.
(a)Whoever, while under the age of criminal majority, possesses, purchases or disseminates, including by uploading to an internet website, any visual material, as defined in section 31, in violation of section 29B or 29C may be punished in accordance with section 58 of chapter 119.
(b)For the purposes of this section, knowingly disseminating visual material by:
(i)reporting the matter to a law enforcement agency, to the department of elementary and secondary education or to a parent, foster parent, guardian, teacher, principal or other relevant school personnel; or
(ii)affording a law enforcement agency, the department of elementary and secondary education or a parent, foster parent, guardian, teacher, principal or other relevant school personnel access to the visual material for purposes within the agency's, department's or person's position, authority or capacity shall not constitute dissemination in violation of this section.
(c)A person who has been adjudicated under this section shall not be required to register with the sex offender registry board and no data relating to such adjudication shall be transmitted to the board pursuant to section 178E of chapter 6. A person who has been adjudicated under this section shall not be subject to section 100J of chapter 276 and shall be eligible for expungement of any criminal records of such adjudication.
(d)The juvenile court department shall have exclusive jurisdiction of proceedings under this section.
(e)It shall be an affirmative defense for any crime alleged to have been committed by a juvenile under section 29A, 29B, 29C or this section that:
(i)the visual material portrays no person other than the juvenile; or (ii)(A) the juvenile was under 18 years of age at the time of the alleged offense;
(B)the visual material portrays only an individual age 16 or older;
(C)the visual material was knowingly and voluntarily created and provided to the juvenile by the individual in the image; and
(D)the juvenile has not provided or made available the material to another person except the individual depicted who originally sent the material to the juvenile.
(f)Nothing in this section shall prohibit a prosecution for disorderly conduct, public indecency, child pornography or any other applicable provision of law.
(g)The Massachusetts District Attorneys Association, with assistance from the 11 district attorneys' offices, shall annually, not later than February 15, report on its actions under this section to the clerks of the house of representatives and senate and the chairs of the joint committee on the judiciary. The report shall include, for each office:
(i)the number of cases under this section referred to that office;
(ii)the number of arraignments conducted for an alleged violation of this section;
(iii)the number of cases under this section where no action was taken;
(iv)the number of cases under this section where the alleged offender was directed to enter into the educational diversion program developed under section 15 of chapter 18C;
(v)the number of cases under this section in which the district attorney objected to diversion pursuant to section 54B of chapter 119 and, of those, the number of cases in which the court proceeded with diversion over the district attorney's objection;
(vi)the number of arraignments conducted for an alleged violation of this section after the alleged offender failed to complete the educational diversion program developed under section 15 of chapter 18C; and
(vii)to the extent feasible, the age, gender identity and race of each person diverted or arraigned for alleged violations of this section; provided, however, that all personally identifiable information published in said report shall be deidentified.