What Matter IsSaturday, February 6th, 2010 by Harry Lewis
“There needs to be some legislative changes to the definition of what matter is,” the head of the Massachusetts District Attorneys said yesterday, after the Supreme Judicial Court read the state laws very closely and agreed with the defense that lewd text messages were not “matter” as defined in state law. It’s a great example of how hard it is to write laws that both stay current as technology changes, and are not so over-broad, in an effort to cover cases no one has yet thought of, that they unintentionally wind up criminalizing innocent activities.
Here is the heart of the statute (MGL Chapter 272, Section 28):
Section 28. Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished by imprisonment in the state prison for not more than five years ….
“Matter” is defined elsewhere as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” Now that list was drawn up with some care–it obviously includes everything they could think of at the time, which seems to have been several technological generations ago. I wonder if anyone has similarly challenged whether DVD’s constitute “motion picture films”?
In his opinion, the judge noted that the legislature had changed the law a few years ago to lengthen the prison term to five years, but didn’t bother to change the list of media. So, he concluded, computer to computer communications aren’t covered, and the court has to assume the legislature didn’t intend to include them. The omission is easily remedied, but it’s not up to the court to do that.
So one creep at least dodged a bullet, and the legislature will no doubt change the law going forward. But it’s a great reminder that the law is a statement of rules, not intentions.
And that it gets stale, not just because of technology changes. Until I was browsing the state’s web site, for example, I didn’t know that adultery was still illegal in Massachusetts (MGL Chapter 272, Section 14):
A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.
Fornication (“sexual intercourse between an unmarried male and an unmarried female”) is still illegal too, but less serious (“punished by imprisonment for not more than three months or by a fine of not more than thirty dollars”).
Any criminals out there?