In the churn of its final 23-hour formal session, the Massachusetts Senate embraced a series of changes members said would protect those victimized by crime. They passed a bill that banned first responders from taking pictures of victims. And after midnight, they spent 90 minutes debating, and then passed, language expanding the list of crimes for which someone could be held before trial.
“Think about the victims that are asking us to act,” Senator Marc R. Pacheco said from the floor.
But survivors of “revenge porn” question whether the Senate thought of them, too.
Despite 48 states outlawing it and the House voting unanimously to do the same, the Senate adjourned its final formal session this week without taking a vote on a measure that would make the sharing of nonconsensual pornography illegal in Massachusetts.
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The inaction stunned the bill’s supporters and frustrated Governor Charlie Baker, who made passing language criminalizing it a centerpiece of his final year’s legislative agenda. Advocates for sexual assault victims lamented that the flurry of activity on other criminal justice items — such as expanding when a court could hold someone alleged to have committed a dangerous crime — likely crowded out a measure they say was a priority for survivors.
“Honestly above and beyond many of the provisions of the dangerousness bill, it was this issue that we were hearing [from survivors] was in need of attention this session,” said Hema Sarang-Sieminski, policy director for Jane Doe Inc.
Revenge porn is a form of abuse advocates say can follow survivors for years on social media and the Internet, yet for years it carried none of the same penalties as other crimes. Over the last decade, dozens of states, plus Washington, D.C., Puerto Rico, and Guam have passed laws making it illegal for ex-partners and others to disseminate sexually explicit images of another person without their consent. Now, just two outliers remain: South Carolina and Massachusetts.
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But as the state Senate’s final formal session stretched into Monday morning, a revenge porn bill that passed the House in May never emerged — bogged down, lawmakers said, by concerns from both within and outside the chamber.
Some legal advocates cautioned that the measure the House embraced was too broadly written and could unintentionally sweep people into a new criminal statute. The ACLU of Massachusetts also lobbied against the bill, according to state records; a spokeswoman didn’t return requests for comments.
And a key Senate leader said he was both uncomfortable with attaching possible jail time to a first offense and questioned whether revenge porn was “a particularly severe problem” despite the attention it’s received from media and law enforcement.
“I did not hear from many colleagues that this was something that was happening in their district,” said Senator Jamie Eldridge, an Acton Democrat and the Senate’s judiciary chairman. He said Senate leaders also did not discuss the bill in closed-door caucuses. “It was absolutely a bill that could have been taken up. It just was a victim of the focus [being] on other quote-unquote more important bills.”
The bill’s long, and still unfinished, path has surprised revenge porn opponents, whose push has not faced the same kind of opposition from Hollywood film studios, lobbying by tech companies, or First Amendment challenges that dogged early adopters.
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“I just don’t get it,” said Sandy, a survivor who asked to be identified only by her first name. Her ex-boyfriend posted lewd photos of her online without her knowledge, along with her name, hometown, and Facebook photo. “We’re just asking to give us a voice so when it happens to other women, they’re protected.”
Senate officials contend the legislation isn’t dead and left open the possibility of it emerging in one of the lightly attended informal sessions that dot the legislative calendar over the next five months.
But a bill’s chances in such settings can be fraught. There are no roll calls, and a single dissenting vote would kill any legislation. Should the Senate successfully move a bill but with different language than the House, both the House and Baker would also likely need to agree to it. With its formal business finished for the year, the Legislature cannot override a gubernatorial veto outside calling a special session, a rarity on Beacon Hill.
“To argue this isn’t an important bill is infuriating,” said S.K., a survivor who has testified before lawmakers and asked not to be identified by name.
As a high school freshman 15 years ago, she was persuaded by an upperclassman to send him naked pictures of herself, only for him to distribute them around her school. She ultimately enrolled elsewhere but battled years of depression and harassment, forcing her family to cut ties within their town.
“Do I have to show them how severe of an issue it is to have impacted my life?” she said.
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The legislation that emerged from the House would make it a misdemeanor crime to knowingly distribute sexually explicit materials of someone, either with the intent to harass, intimidate, or cause emotional distress, or doing so with “reckless disregard” of the person’s expectation that they would remain private.
Those convicted would face up to 2½ years in jail, a $10,000 fine, or both, while those guilty of second or subsequent offenses could face felony penalties, including up to 10 years in prison.
The state’s current criminal harassment statute requires that prosecutors prove someone engaged in a “knowing pattern of conduct or series of acts” — or three or more incidents, according to a 2005 Supreme Judicial Court ruling — to be charged. The proposed revenge porn statute, however, would be triggered by a single incident.
Eldridge said he personally is concerned with a first-time offender facing potential jail time over what could be an “emotional” act.
“Quite honestly, it’s likely a couple who has or had a relationship, and an image is shared in the heat of a fight or some dispute, is that person going to know that that could mean jail time? Is that really going to be a deterrent?” he said.
The House bill also attempts to address teen “sexting,” or the sharing of sexual images or videos through phones, apps, and other ways. The proposal would divert minors who share explicit images of themselves or their peers into an “educational diversion program” developed by the state attorney general, instead of automatically charging them with crimes.
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Leon Smith, executive director of Citizens for Juvenile Justice, said he believes the bill can be tightened, including by adding language requiring prosecutors prove an offender acted “willfully and maliciously” — a legal standard he said better targets “bad actors.” He said the bill also needs better “guardrails” in handling juvenile cases.
But they are changes he classified as tweaks, and said his group is not opposed to the bill’s intent. “It’s the kind of issue that if we as a commonwealth are going to do this — and there certainly is a need for something to be done — we should take our time, and we should make sure that we get it right,” Smith said.
Supporters argue there was a window to do just that, and fear Massachusetts will fall further behind in protecting victims.
Baker used his final State of the Commonwealth address in January to highlight the need to address revenge porn and pressed lawmakers publicly by organizing a series of roundtables with survivors and advocates to call for action on both this and his dangerousness proposal.
“By failing to pass legislation to crack down on revenge porn, the Legislature has once again failed survivors,” Baker said in a statement. “It’s long past time that Massachusetts finally join the rest of the country and enact these crucial protections.”
Material from the State House News Service was used in this report.
Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.