Archives January 2025

Revenge Porn Law – Law Office of William J. Barabino


Sexual abuse is a serious crime that comes from a wide variety of conduct. One way a person can be sexually abused is through revenge porn. Across the country, states have been passing laws to criminalize revenge porn. Massachusetts is one of the latest.

What is revenge porn?

When a person posts sexually explicit images of a person online without their consent they have committed the crime of disseminating revenge pornography. Revenge porn, as the name suggests, is typically done as a form of revenge or harassment.

For example, a boyfriend films a pornographic video of his girlfriend while they are dating. The girlfriend consents to the videotaping, but the boyfriend takes possession of the recording. The girlfriend then breaks up with the boyfriend. The breakup was unexpected and the boyfriend is bitter. The girlfriend asks him to destroy the video and he refuses. Instead, he threatens to post the video on the internet unless she gets back together with him. The girlfriend tells him that she does not consent to this and refuses to get back together with him. The boyfriend then posts the video. The boyfriend has likely committed the crime of revenge porn.

Does Massachusetts have a law against revenge porn?

Yes, Massachusetts recently enacted a law to prevent image-based sexual assault or revenge pornography. The law has been in effect since September 2024. It is called An Act to Prevent Abuse and Exploitation.

The new law makes several amendments, or changes, to existing laws. The laws that are amended are:

  • Chapter 209A: The Abuse Prevention Statute
  • Chapter 265, Section 43A: The Criminal Harassment Statute
  • Chapter 119: Protection and Care of Children
  • Chapter 272: Crimes Against Chastity, Morality, Decency, and Good Order
  • The Statute of Limitations

Abuse Prevention Statute

The Abuse Prevention Law gives people suffering from abuse from a family or household member the opportunity to obtain a restraining order. The changes under the new law alter the definition of what counts as abuse. Abuse is now:

  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Causing another to engage involuntarily in sexual relations by force, threat or duress
  • Coercive control

The highlight is that the new definition of abuse now includes coercive control.

The new law gives a definition for this word as well: “a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy”.

The Criminal Harassment Statute

General Laws Chapter 265, Section 43A makes it a crime to harass another person. Under the new law, the possible fines for a first offense are increased:

  • First offense: maximum of $1,000 to $5,000
  • Second offense: maximum of up to $15,000

Protection and Care of Children

The new law also creates new diversion opportunities for juveniles. It requires juvenile court judges order diversion for juveniles changed with certain crimes. These include:

  • Disseminating visual material of a child in a state of nudity or sexual conduct
  • Knowing purchase or possession of visual material of a child depicted in sexual conduct
  • Minors who possess, purchase, or disseminate visual material

Morality Crimes

The new law criminalizes revenge porn use by a minor. The elements, or essential requirements of this crime are:

  • The person was a minor
  • The person possessed, purchased, or disseminated (including uploaded to a website) “visual material”
  • In violation of the laws (1) criminalizing disseminating visual material of a child in a state of nudity or sexual conduct OR (2) knowingly purchasing or possessing visual material of a child depicted in sexual conduct

Visual material is defined by law as: “any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer, telephone or any other device capable of electronic data storage or transmission.”

Importantly, there is an exception for reporting visual material to the authorities.

Statute of Limitations


A statute of limitations is the maximum amount of time before the parties involved in a legal dispute must bring their claims after an offense has occurred. In criminal law, this is the time limit for the government to prosecute a criminal case against a person.

The new law expands the statute of limitations for these two crimes to ten years:

  • Assault and battery on a family or household member
  • Assault and battery on a person under a protective order that is in effect

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A SEX CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Related Articles:



law

Assault and Battery on a Healthcare Provider


Assault and battery is a criminal offense in Massachusetts. There are different types of assault and battery. The types usually have to do with who the victim is. Certain categories of vulnerable people have special protection under the law. Some examples include:

  • Pregnant Women
  • Police Officers
  • Correctional Officers
  • Children Under 14 Years Old

One type of assault and battery is assault and battery on a healthcare provider. The purpose of this crime is to protect people who provide healthcare services. Medical providers like paramedics and emergency room nurses are often first responders to criminal events. The aim of the law is to give them special protection from injury when they do their job.

What is assault and battery?

In order to understand assault and battery on a healthcare provider, you need to first understand the definition of assault and battery in Massachusetts.

Assault and battery is offensive or harmful touching of another person. The touching can be either intentional or reckless. Intentional touching is touching that is conscious and deliberate. Touching someone accidentally or negligently is not intentional touching. Reckless touching is touching that the person who did the touching knew, or should have known, was very likely to cause substantial harm to someone but they ran that risk and went ahead anyway.

The difference between intentional and reckless touching might sound abstract. Examples can help illustrate how they are distinct:

Intentional Touching: Getting angry with someone and punching them in the face.

Reckless Touching: Swinging a hammer around in a circle near someone and hitting them in the arm accidentally.

In the first example, the decision to touch the victim (punching them) was intentional. It was done because the person doing the touching was angry. In the second example, the conduct was not intentional. Hitting the other person was an accident. But the conduct, swinging a hammer around close to another person, is behavior the other person either knew or should have known was very likely to substantially cause harm. It still counts as assault and battery.

The takeaway is that assault and battery requires either intent or recklessness. Just because conduct is not intentional does not necessarily mean it is not assault and battery. Intent and recklessness are mental states. Criminal cases often come down to a person’s mental state. It is the obligation of the Commonwealth to prove every crime beyond a reasonable doubt. This includes the alleged offender’s mental state. An effective criminal defense attorney holds the Commonwealth to its burden of proof.

What is assault and battery on a healthcare provider?

With that understanding in mind, it is now possible to understand what it means to commit an assault and battery on a healthcare provider. In order for the Commonwealth to convict a person of this crime, the Commonwealth must prove beyond a reasonable doubt that an assault and battery occurred in addition to three other requirements:

  • The alleged victim was (one of these): (1.) an emergency medical technician; (2.) an ambulance operator; and/or(3.) a health care provider.
  • The alleged victim was treating or transporting a person in the performance of their duties at the time of the alleged incident.
  • The defendant had knowledge of the above

Important to note is the requirement of knowledge, an additional mental state. Remember that proving simple assault and battery requires proof beyond a reasonable doubt of either intent or recklessness. Assault and battery against a healthcare provider requires proof of either intent or recklessness in addition to proof of knowledge. Knowledge for this crime means the person had an awareness or understanding that the person they touched was both one of the above categories or people and was performing their duties at the time of the alleged incident. It is not enough that a reasonable person would have known.

For example, a person is sitting on a park bench and requires medical attention. A pedestrian calls 9-1-1 and paramedics arrive. One of the paramedics approaches the person on the bench from behind to provide medical assistance. The person on the bench does not realize the approaching person is a paramedic and turns around and punches them. In this case, it would be difficult for the Commonwealth to prove knowledge. Even if the person on the bench saw the ambulance arrive at the park and heard sirens, if they did not know the paramedic approaching them from behind was a medical professional attempting to provide medical assistance, the Commonwealth would not be able to prove knowledge beyond a reasonable doubt.

Who counts as a health care provider?

Crimes often do not provide definitions for words used, but sometimes they do. “Health care provider” is defined in different statutes. They include:

  • Dentists
  • Nurses
  • Pharmacists
  • Social workers
  • Chiropractors
  • Psychologists
  • Interns
  • Residents
  • Fellows
  • Hospitals
  • Clinics
  • Nursing homes

A successful criminal defense attorney pays close attention to definitions when preparing a defense. Sometimes the legal definitions of words are counterintuitive. For example, a person might think a “health care provider” must be a person. However, as the definition explains, it can also include a facility, such as a hospital or nursing home.

Is assault and battery on a healthcare provider a felony?

No, assault and battery on a healthcare provider is not a felony. It is a misdemeanor.

Is self-defense a defense to assault and battery on a healthcare provider?

Yes, self-defense can be a defense to this crime. Self-defense would be applicable if a person does not consent to medical treatment. Self-defense is an affirmative defense, which means the requirements for it to apply must be proven by the accused. If the Commonwealth is able to prove any of facts on this list beyond a reasonable doubt, the defense does notapply:

  • The accused consented to treatment
  • There was an emergency requiring immediate medical treatment, the accused could not consent, and there was no time to obtain consent
  • The accused did not do everything reasonable to avoid using physical force before resorting to physical force
  • The accused used more force than necessary to defend themself

Consent can be express or implied. For example, a person saying “I consent” is expressly consenting. Implied consent could include saying or doing nothing in response to a medical provider beginning to administer treatment.

An emergency, such as a head injury causing loss of conscious, would also likely not justify self-defense. That would be so if the injury was life-threatening and the defendant was truly unconscious and could not speak.

If a person starts receiving medical care and treatment against their wishes and responds by punching the health care provider in the face, this would likely not be doing “everything reasonable” to avoid using physical force. If the person is able to speak, they should have first asked the healthcare provider to stop administering treatment.

If a person responds to a healthcare provider beginning to treat a small cut by shooting them with a gun, this would likely be considered “more force than necessary.”

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH ASSAULT AND BATTERY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Related Articles:



law

Jail Informant(s) – Law Office of William J. Barabino


Testimony at a criminal trial can come from many different sources. Police officers, bystanders, family members, friends, and even the alleged victims of crimes can take the stand. Another source is an incarcerated informant, sometimes called a “a snitch” as an insult or street slang. The highest court in Massachusetts recently declared that they will have new process for this testimony.

What is an incarcerated informant?

An incarcerated informant is a witness who was in custody at the time they offered to testify and/or are currently testifying.

An incarcerated informant gives testimony against the accused in a criminal case. The testimony is often an allegation that the defendant made an admission, or that the defendant said or did something showing that they are guilty. Sometimes that alleged admission is direct. For example, a defendant who is incarcerated before his trial might say to another inmate, “I did it.” More often, the alleged admission is circumstantial. It might be alleged that a defendant talked about going to the home of the victim the night a crime took place. This isn’t directly admitting guilt, but it is a fact that could be used to establish identity, or that a person is a perpetrator.

Is testimony from an incarcerated informant reliable?

There are serious concerns that testimony from an incarcerated informant might not be reliable.

One of the “gatekeeping” jobs of a court is to make sure testimony that is presented to a jury is reliable. Juries decide whether testimony is credible or believable, but it is usually the job of judges to ensure that before testimony gets to a jury for evaluation it is reliable, or accurate. A witness might be credible but not reliable. For example, a witness might honestly but mistakenly believe he saw a defendant commit a crime. The witness is credible but his testimony is not reliable because if he actually did not see the defendant commit the crime his testimony cannot be accurate.

There are concerns about the reliability of testimony from an incarcerated witness because of the position an incarcerated witness is in when he testifies. Incarcerated informants have a strong motivation to lie to secure benefits or special treatment. For example, an incarcerated informant might tell a prosecutor that the defendant admitted to the crime that the defendant is charged with. This could be a lie. The incarcerated informant might be motivated to lie because he thinks providing this testimony will help the government win the case against the defendant and he will be rewarded with kinder treatment in his own criminal case.

Moreover, sometimes prosecutors enter into formal agreements with incarcerated informants who offer testimony. These are called cooperation agreements. A cooperation agreement is a deal in which an incarcerated informant offers to provide testimony against the defendant in exchange for the district attorney taking his cooperation into consideration in the incarcerated informant’s criminal case.

There are other reasons an incarcerated informant might lie:

  • Fear or Intimidation: An incarcerated informant might lie because he is afraid. He might believe testifying truthfully could lead to retaliation from other inmates.
  • Revenge or Bias: An incarcerated informant might lie because he has a grudge against the defendant and wants to retaliate against him.
  • Pressure From Law Enforcement: An incarcerated informant might lie because he feels pressured or coerced by law enforcement to provide false testimony.
  • Lack of Credibility: An incarcerated informant might simply be a liar with a history of providing false testimony.

An incarcerated informant’s testimony might also be inaccurate due to a mental health problem or substance abuse. Since many inmates suffer from mental health and substance abuse, this is another reliability concern unique to incarcerated informants.

How do courts make sure testimony from an incarcerated informant is reliable?

The Massachusetts Supreme Judicial Court recently decided a case on the role courts in Massachusetts should play in ensuring testimony from an incarcerated informant is reliable.

The defendant, Nickolas Lacrosse, was indicted for murdering his ex-girlfriend. Lacrosse was accused of stabbing her to death in her home after she broke up with him. Lacrosse did not deny that he killed the victim but asserted an insanity defense. He argued that he was not criminally responsible because he was suffering from a form of amnesia at the time.

At the trial, the Commonwealth called two witnesses who were inmates at the same jail Lacrosse was held at before his trial. The inmates testified on direct examination that Lacrosse admitted to them that he committed the crime and that he was going to “play the crazy card” as a defense. It was also alleged that he spoke to them about the murder weapon and hiding it.

On cross examination, Lacrosse’s lawyer questioned the incarcerated informants. They successfully impeached, or challenged the credibility, of the witnesses. For example, one of the defendants admitted that he had lied previously and had memory problems. The defense attorney also addressed a cooperation agreement one of the incarcerated informants entered into to highlight that this witness was biased in favor of the Commonwealth.

At the end of the trial, the jury decided to convict Lacrosse. He appealed and the Massachusetts Supreme Judicial Court took his case. One of his arguments was that neither of the incarcerated informants should have been allowed to testify unless there was a preliminary hearing determining that they were reliable.

The Court acknowledged scientific and legal research showing that testimony from incarcerated witnesses is often unreliable but decided that a hearing was not necessary. The Court concluded that juries could independently evaluate how much weight to give the testimony of incarcerated informants. There was no need for the Court to intervene. The Court ruled, however, that a jury instruction on incarcerated witnesses was necessary.

What does the jury instruction for incarcerated witnesses say?

A jury instruction is a statement on the law that the judge reads to the jury before they deliberate. Jury instructions are usually agreed to before the trial.

The jury instruction on incarcerated informants explains what an incarcerated informant is and tells jurors to examine their testimony with “greater care and caution.” The instruction explains the issues with reliability that incarcerated informants have like the incentive for favorable treatment. It then talks about ways to evaluate the credibility of incarcerated informants. These include asking:

  • Is the informant’s testimony confirmed by other evidence?
  • Has the informant received a benefit for their testimony?
  • Has the informant ever changed their testimony?
  • Has the informant testified as an informant before?

In the end, though, the ruling of the Lacrosse case is that it is the job of juries, not judges, to decide on how much to weigh the testimony of an incarcerated informant. This was one of the reasons the Court upheld Lacrosse’s murder conviction.

What role does a criminal defense attorney play with incarcerated witnesses?

The Lacrosse case shows the important role of a criminal defense attorney when an incarcerated informant takes the stand. Criminal defense attorneys cross examine government witnesses. A key aim is to impeach their testimony. Establishing that the testimony of a witness is not credible helps lead a jury to reasonably doubt whether a defendant committed a crime. An effective criminal defense attorney will develop a rigorous cross examination that ensures every reason to doubt the credibility of a witness is investigated. This includes reasons to question the reliability of an incarcerated informant, such as a motivation to lie.

IF YOU OR A LOVED ONE HAVE A CASE INVOLVING AN INCARCERATED INFORMANT, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Related Articles:



law