Possession and Dissemination.
Possession of Child Pornography is described as knowingly possessing and/or purchasing an image of a child engaged in sexual conduct.
In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:
- First, you knowingly purchased or possessed images of a child under the age of 18 engaged in sexual conduct;
- Second, the image of the person under the age of 18 is actually (or by simulation) engaged in any act of sexual conduct or contact as described in M.G.L. Ch. 272, §29C;
- Third, you knew or should have known that the child in the image was under the age of 18; and
- Fourth, that you knew of the nature and/or content of the images,
Proof that the image(s) contained nudity is not sufficient for a conviction; rather, the person must be engaged in one of the activities specified in M.G.L. Ch. 272, §29C.
Dissemination of Child Pornography requires proof of the same elements described above, plus that you provided the images to someone else, and you did it with lascivious intent.
Lascivious intent is defined as “a state of mind in which the sexual gratification or arousal of any person is an objective.” Examples given in the statute as of proof of lascivious intent are:
- whether the circumstances include sexual behavior, sexual relations, infamous conduct of a lustful or obscene nature, deviation from accepted customs and manners, or sexually oriented displays;
- whether the focal point of a visual depiction is the child’s genitalia, pubic area, or breast area of a female child;
- whether the setting or pose of a visual depiction is generally associated with sexual activity;
- whether the child is depicted in an unnatural pose or inappropriate attire, considering the child’s age;
- whether the depiction denotes sexual suggestiveness or a willingness to engage in sexual activity;
- whether the depiction is of a child engaging in or being engaged in sexual conduct, including, but not limited to, sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sado-masochistic behavior, or lewd exhibition of the genitals.
A “child” is anyone under the age of 18.