The Massachusetts Supreme Judicial Court recently decided the case of Commonwealth v. Kereakoglow, and reversed the defendant’s conviction after jury trial on the criminal charges of Possession with Intent to Disseminate Material Harmful to Minors, in violation of Massachusetts General Laws Chapter 272, Section 28.
The defendant, residing in South Hadley (Hampshire County), allegedly sent three nude images of himself via e-mail to a police officer posing online as a fifteen year old girl living in Wenham (Essex County). The criminal offense of Possession with Intent to Disseminate Material Harmful to Minors requires the prosecutor to prove to the jury that the material was “harmful to minors.” Massachusetts General Laws Chapter 272, Section 31 defines material that is harmful to minors as material that is “obscene” or if taken as a whole:
- rerpesents sexual images so as to appeal to the prurient interest of minors;
- is patently contrary to the prevailing standards of adults in the county where the offense was committed; and
- lacks serious literary, artistic, political or scientific value for minors.
As the alleged criminal offense was “committed” in Essex County where the defendant was residing, the Massachusetts Supreme Judicial Court ruled that the jury had to decide whether the images were “patently contrary” to the prevailing standards of adults in Essex County. Because the defendant was tried in Hampshire County and the jury was not instructed on how to determine “the county where the offense was committed,” the Supreme Judicial Court found error and reversed the defendant’s conviction.
Boston Criminal Lawyer Lefteris K. Travayiakis Offers His Own Thoughts:
The images involved in this case portrayed the defendant nude, with his genitals prominently displayed. It is important to note that the trial judge made a determination, as a matter of law, that the images were not “obscene.” Massachusetts criminal law defines “obscene material” by a three-pronged test, meaning all three of the following factors must be satisfied for the material in question to be deemed “obscene”:
- The material must appeal to the prurient interest of the average person applying the contemporary standards of the county where the offense was committed;
- Depict or describe sexual conduct in a patently offensive way; and
- Lack serious literary, artistic, political or scientific value.
In this particular case, this criminal defendant was also charged under Massachusetts General Laws Chapter 265, Section 26C, which is the criminal offense for Enticing a Child under 16. The jury acquitted him of that charge.
In Massachusetts, criminal charges involving internet or cyber crimes and dissemination of obscene material, particularly to minors, are prosecuted very aggressively throughout the state. As was illustrated in this case, the defense of someone charged with these or similar crimes can often rise or fall on very intricate legal issues that the criminal attorney must be quick and knowledgeable to recognize.
For that reason, if you have been charged with an Internet Crime or Cyber Crime, such as Pornography, Dissemination of Harmful Material to a Minor, or Enticing a Child Under 16, you would be well-served by immediately consulting with an experienced Massachusetts Criminal Defense Lawyer.
Boston Criminal Defense Lawyer Lefteris K. Travayiakis has experience in representing persons accused with Internet/Cyber Crimes, Sex Crimes, and similar criminal charges. He is available 24/7 and offers a Free Consultation to discuss your legal rights and options. To consult with an experienced criminal attorney, contact Lefteris K. Travayiakis by e-mail or directly at 617-325-9500.
Read the full decision of Commonwealth v. Kereakoglow by the Massachusetts Supreme Judicial Court.