Posted by Eugene Volokh:
Proposed Ban on Making and Distributing Pornography Involving >60-Year-Olds and
the Disabled:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238285248
Yup, the 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 [1]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.
The bill text is [2]here; the provisions that would be amended are
[3]here and [4]here; and the definitions of "elder" (anyone age 60 or
older) and "person with a disability" ("a person with ) are [5]here.
If anyone can point me to a version that merges the existing text with
the changes, I'd love to link to it.
References
1. http://www.bostonherald.com/news/regional/view.bg?articleid=1161200
2. http://www.mass.gov/legis/bills/house/186/ht01/ht01688.htm
3. http://www.mass.gov/legis/laws/mgl/272-29a.htm
4. http://www.mass.gov/legis/laws/mgl/272-29a.htm
5. http://www.mass.gov/legis/laws/mgl/265-13k.htm
_______________________________________________
Volokh mailing list
Volokh@lists.powerblogs.com
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
