Text Messages not “matter” for purposes of ch 272 sect 28

On February 5th, 2010 the Supreme Judicial Court in COMMONWEALTH vs. MATT H. ZUBIEL 456 Mass. 27 (2010) held that Text Messages did not constitute “matter” for the purposes of MGL 272 sect 28 the Disemination of harmful matter to children.

After attempting to arrange for sex with a minor Zubiel was arrested and charged with disseminating harmful matter to a minor for text messages he sent which included his intention to “show her how it is done”. The SJC held that the text messages were not considered “matter” stating “General Laws c. 272, § 28, provides: “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 . . . .” “Matter” is defined in G. L. c. 272, § 31, for purposes of G. L. c. 272, §§ 28-30D, [Note 3]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.”

Online electronically transmitted conversations are not explicitly included in the definition of “matter” under § 31. Penal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Commonwealth v. Twitchell, 416 Mass. 114 , 123 (1993), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983). Therefore, criminal statutes are strictly construed against the government. Commonwealth v. Richards, 426 Mass. 689 , 690 (1998).

a. Visual representations. There are four broad categories of “[m]atter:” (1) any handwritten or printed material; (2) any visual representation; (3) any live performance; and (4) any sound recording. G. L. c. 272, § 31. The Commonwealth argues that the computer text was a visual representation. Zubiel contends that the online conversations between himself and Marino were not “visual representation[s],” as the term “visual representation” in § 31 refers to photographs and other images, but not text. We agree.
General Laws c. 272, § 31, does not define “visual representation.” However, it does define “[v]isual material,” listing numerous specific media that are considered “visual material” under the statute. [Note 4] When elements are listed in a series, the rules of statutory construction require the general phrase to be construed as restricted to elements similar to the specific elements listed. Santos v. Bettencourt, 40 Mass. App. Ct. 90 , 92 (1996). This principle, ejusdem generis, “allow[s] the specific words to identify the class and [restricts] the meaning of general words to things within the class.” 2A N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47.17, at 379 (7th ed. 2007).

Here, the specific elements listed as “[v]isual material” are limited to the class of pictures — moving or still, whether on paper, film, or computer. The statute indicates nowhere an intent by the Legislature to include words, such as those used in online conversations, in this definition.

In addition, the use of the phrase “visual representations” in the definition of “[v]isual material” provides insight into the definition of “visual representation.” The definition of “[v]isual material” includes “pictures, photographs or similar visual representations.” The inclusion of “similar visual representations” following the words “pictures” and “photographs” indicates that it refers to images, not purely written words.

Because the statute provides no definition of “visual representation,” this court must interpret the words of the statute according to their usual and accepted meaning. Commonwealth v. O’Keefe, 48 Mass. App. Ct. 566 , 567 (2000). No Massachusetts court has defined “visual representation” to include pure text, such as the online conversations in this case. [Note 5] The ordinary meaning of “visual representation” does not include purely textual material. Accordingly, we hold that the Legislature did not intend online conversation to be considered as “visual representation” under § 31.”


The decision is troubling on many levels but especially considering that in 2000 the legislature considered amending the statute to satisfy the requirements necessary and declined to do so (see footnote 8). Police should still have no problems charging a similar situated defendant with Chapter 265: Section 26C

Attorney Ronald. A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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