Massachusetts Bill Would Ban Elder Porn

Eugene Volokh has a post discussing a proposed Massachusetts bill that prohibits the creation and distribution of any sexual "visual material" depicting anyone 60 years old or over or someone with a "a permanent or long-term physical or mental impairment." You can read the text of the bill here. From Volokh's post:

[T]he law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection."

The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)

Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.

This bill is clearly unconstitutional. Does anyone have any idea why it is being proposed? Was there some odd elder porn incident in Massachusetts? It all sounds very strange.

Comments

[Dave]

This is sooooo unconstitutional on so many levels, it is laughable. Another application of tax payer money to charge at windmills, so that the inept may get re-elected.

[Mark]

The intent of this bill is actually a good cause i believe, but the execution is just a constitutional lawsuit waiting to happen. We should have a 3 strikes law on unconstitutional bills, any politician that creates a law later found to be unconstitutional 3 times in his entire career should be banned from office.

[George]

Maybe a lawmaker wants to filter these out of his online porn viewing. I agree with Mark, except the lawmaker should be charged with perjury for violating his/her oath of office to protect the Constitution.

[Daniel]

I'm sorry but I really don't see how this is unconstitutional though maybe some finer legal mind than I will explain. It seems to me that once you go down the "consent" road there is no going back.

"why not simply say "anyone adjudicated as incompetent by a court of the commonwealth,"

Ummm because children are not adjudicated by courts of the commonwealth as incompetent; they are considered incompetent under the law passed by the legislature.

I think it is important to remember that in ancient Greek democracy the prime determiner of being competent was monetary wealth. We have much the same system here, only we tend to focus more on psychological health. I don't know that it makes they system much better, only different.

The issue is always the same: Quis custodiet ipsos custodes?

[Andy]

Sounds to me like a shot across the bow against "sexting" seniors........

[Corey Rayburn Yung]

Hi Daniel,

People have a right to make pornography as part of their free speech rights under the First Amendment. The Court has decided that child pornography is a special case and images of minors (even when they are of the age of consent in their local jurisdiction) are unprotected. Accepting the premise that adult pornography is speech, unless it is obscene, the elderly have a right to be filmed or film themselves. A narrower statute that found all those mentally incompetent to consent could not be in pornography could survive constitutional scrutiny. However, being over 60 does not render someone incompetent. The overwhelming majority of people in that age group are able to freely consent to sex and pornography.

Best,

Corey

[Mark]

next you will see new laws that prohibit any senior citizen from having sex and/or anyone below the age of 65 can not engage in sex with someone older then 65.

Why stop there, lets make it a crime for anyone to take photos of anyone else minor or adult unless they are within 5 years of each other, then make it a crime to view them accordingly.

[rodney]

I have an ideal for an even better law. Make it illegal for people to pass idiotic laws like this! Violation of this law would be punished by DEATH.

[vivian]

It is a consent issue, if the person is incapable of consent you cannot take revealing photos of them. If they are under your care, and are photographed without their knowledge, or consent under duress--its illegal.
If you are a medical care specialist and you take revealing photos of someone undergoing an operation or
care....its illegal.
It is concerned with protecting the vulnerable.