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SJC-13880
COMMONWEALTH vs. CLERENCE H. GONCALVES.
Dukes County. April 6, 2026. – October 6, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Evidence, Photograph, State of mind, Intent, Accident. Intent.
Statute, Construction. Practice, Criminal, State of mind,
Instructions to jury. Words, "Disseminates."
Complaint received and sworn to in the Edgartown Division of the District Court Department on December 29, 2021.
The case was tried before Benjamin C. Barnes, J.
The Supreme Judicial Court granted an application for direct appellate review.
Haylie Jacobson, Committee for Public Counsel Services, for the defendant.
John J. Carmody, Assistant District Attorney, for the Commonwealth.
DEWAR, J. The defendant, Clerence H. Goncalves,
surreptitiously photographed a sexual encounter between himself
and the victim using a camera installed in his living room and
2
later sent a photograph of the encounter to the victim. A jury
convicted the defendant of two offenses: photographing an
unsuspecting nude person, in violation of G. L. c. 272,
§ 105 (b), first par., and disseminating the resulting
photograph, in violation of G. L. c. 272, § 105 (c), first par.
The defendant challenges both convictions on appeal.
We reject the defendant's challenges to his conviction of
photographing an unsuspecting nude person. Notwithstanding the
defense at trial that the photograph resulted accidentally from
the defendant's installation of the camera for security
purposes, the evidence was sufficient to prove that the
defendant willfully photographed the victim in the nude with the
intent to do so secretly. And, contrary to the defendant's
argument raised for the first time on appeal, the jury
instructions adequately conveyed to the jury that the
Commonwealth was required to prove that the defendant willfully
photographed the victim while the victim was nude.
We agree with the defendant, however, that his conviction
of disseminating the resulting photograph must be reversed. We
hold that sending a photograph of a victim solely to the victim
himself or herself does not amount to "disseminat[ing]" the
photograph within the meaning of G. L. c. 272, § 105 (c), first
par. And here, the Commonwealth did not present evidence that
3
the defendant sent the photograph to any person other than the
victim.
We therefore affirm the defendant's conviction under G. L.
c. 272, § 105 (b), first par., and reverse the defendant's
conviction under G. L. c. 272, § 105 (c), first par.
Background. 1. Facts. We recite the facts the jury could
have found, viewing the evidence in the light most favorable to
the Commonwealth.
The defendant lived in a basement-level apartment in
Edgartown on Martha's Vineyard. The apartment's living room
contained a television on one wall, a couch in the middle of the
room, and other furniture. The walls were white or lightcolored, and a white tarp covered the ceiling.
The defendant had installed a Kasa-branded "24/7 Recording"
camera at a top corner of the room, approximately seven and onehalf feet above the floor, above and to the side of the
television. The camera was affixed to the wall with a bracket
similar in color to the wall. The main body of the camera was
square-shaped, two and one-half to three inches long per side,
and black in color on the side facing the room. The camera was
installed just below a dark gap in the ceiling where the white
tarp did not quite meet the wall, and next to a dark-colored
pipe also protruding from the same wall. The camera was angled
4
downward, pointing directly toward the couch in the middle of
the room.
On the evening of December 6, 2021, while visiting Martha's
Vineyard, the victim began communicating with the defendant
through an online application for men seeking to meet other men.
The defendant's profile on the application stated, among other
things, "I will never make videos."
After exchanging messages with the defendant, the victim
went to the defendant's apartment. Their ensuing sexual
encounter began on the couch in the middle of the defendant's
living room, and, for a period of time, the victim sat on the
couch completely nude, engaged in sexual conduct with the
defendant. As shown in the photograph taken during this time,
the room was dimly lit, inferably illuminated only by a small
table lamp located near the couch. After ten minutes, the
defendant and victim moved to the defendant's bedroom to
continue the sexual encounter. After another thirty-five
minutes, they exchanged telephone numbers and parted ways.
The defendant did not notify the victim that he was being
photographed or otherwise recorded, nor ask for the victim's
consent to be photographed or recorded. The victim did not
notice the camera in the living room nor perceive any other sign
that the encounter was being recorded.
5
The two did not communicate again until two weeks later,
when the victim sent the defendant a text message. During the
ensuing exchange of messages, the defendant sent the victim a
photograph1 of the victim and defendant, both nude, in the
defendant's living room during their prior encounter. The
victim is seated on the couch, facing the camera. Based on the
angle of the photograph and a "Kasa" watermark on the image, the
photograph inferably was taken by the camera that the defendant
had installed in the top corner of the room. The victim
responded to this photograph with a series of messages that, in
part, questioned the defendant's conduct in "secretly recording
guys that come over" and raised the possibility of reporting the
conduct to the Edgartown police. The defendant's subsequent
messages to the victim did not include any assertion that the
1 In referring to this visual image as a "photograph" and the defendant's conduct as "photographing" the victim, we adhere to the terms used by the witnesses at trial and the parties on appeal. Section 105 applies more broadly to "photograph[ing], videotap[ing,] or electronically surveil[ling]" a victim, G. L. c. 272, § 105 (b), and defines "[e]lectronically surveils" as "to view, obtain or record a person's visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device," G. L. c. 272, § 105 (a). While acknowledging that the distinctions among photographing, videotaping, or electronically surveilling may be material in some cases, cf. Commonwealth v. Cooper, 100 Mass. App. Ct. 345, 348 n.2 (2021), for simplicity's sake we at times use the term "recording" when referring collectively to all of these actions prohibited by the statute.
6
recording was accidental, and, after the victim's reference to
the police, the defendant replied, "Block u[.] Bye."
The victim reported the defendant's conduct to the
Edgartown police. During a subsequent search of the defendant's
apartment, police observed the camera installed in the
defendant's living room. They also found the box in which the
camera was sold inside the drawer of a dresser in the
defendant's bedroom.2 There were no signs posted in the
apartment notifying visitors of any potential recording.
While detained, the defendant told one officer, "This is
the last time I'll be in the police station. I'll go back to
Brazil." He then said, "So I make porno," and laughed.
2. Procedural history. On December 29, 2021, the
defendant was charged with photographing an unsuspecting nude
person, G. L. c. 272, § 105 (b), and with disseminating a
photograph of an unsuspecting nude person, G. L. c. 272,
§ 105 (c). A jury trial began on March 21, 2024. The trial
judge denied the defendant's motion for a required finding of
not guilty at the close of the Commonwealth's case, and the
defense did not present any evidence. The following day, the
2 Police did not recover any photographs or other recordings of the victim in the defendant's possession at the time of the search. The camera did not at that time contain an "SD card" on which recordings could be stored, and, although police also seized a cell phone, they were unable to obtain access to its contents.
7
jury returned guilty verdicts on both charges. The judge
sentenced the defendant to concurrent terms of ninety days in a
house of correction, with ten days to serve and the balance
suspended for one year, as well as one year of administrative
probation. The defendant timely appealed, and this court
allowed his application for direct appellate review.
Discussion. We address in turn the defendant's arguments
with respect to each of his two convictions.
1. Photographing an unsuspecting nude person. General
Laws c. 272, § 105 (b), first par., makes it a crime to
"willfully photograph[], videotape[] or electronically
surveil[] another person who is nude or partially nude,
with the intent to secretly conduct or hide such activity,
when the other person in such place and circumstance would
have a reasonable expectation of privacy in not being so
photographed, videotaped or electronically surveilled, and
without that person's knowledge and consent."
The Commonwealth thus must prove two things with respect to the
defendant's intent: that the defendant (1) "willfully
photograph[ed], videotape[d] or electronically surveil[led]
another person who is nude or partially nude," and (2) did so
with the "intent to secretly conduct or hide" this activity.
See Commonwealth v. Robertson, 467 Mass. 371, 375-376 (2014).
The defendant challenges the sufficiency of the evidence
that he willfully photographed the victim in the nude, the
sufficiency of the evidence that he did so with the intent to
hide this activity, and the jury instruction on willfulness.
8
a. Evidence of willfulness. When reviewing the
sufficiency of the evidence, we assess whether, "after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (citation omitted).
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See
Commonwealth v. MacCormack, 491 Mass. 848, 859-860 (2023) (court
"must look at the evidence as a whole" to determine whether it
is "of sufficient force to bring minds of ordinary intelligence
and sagacity to the persuasion of [guilt] beyond a reasonable
doubt" [citations omitted]). "A conviction may rest exclusively
on circumstantial evidence, and, in evaluating that evidence, we
draw all reasonable inferences in favor of the Commonwealth."
Commonwealth v. Spaulding, 495 Mass. 300, 309-310 (2025),
quoting Commonwealth v. Bonner, 489 Mass. 268, 275 (2022).
These inferences "need only be reasonable and possible, not
necessary or inescapable" (quotation omitted). Commonwealth v.
Witkowski, 487 Mass. 675, 679 (2021), quoting Commonwealth v.
Copeland, 481 Mass. 255, 259-260 (2019). The Commonwealth's
evidence is insufficient, however, if it "relies on conjecture
or speculation." Commonwealth v. Rodriguez, 456 Mass. 578, 582
(2010).
The parties agree that, in the context of G. L. c. 272,
§ 105 (b), "willfully" means "intentional[ly] and by design[,]
9
in contrast to that which is thoughtless or accidental."
Commonwealth v. Pfeiffer, 482 Mass. 110, 116, cert. denied, 589
U.S. 1061 (2019), quoting Commonwealth v. McGovern, 397 Mass.
863, 868 (1986). The defendant also contends, and the
Commonwealth does not dispute, that the Commonwealth was
required to prove more than just the willful photographing of a
victim generally; rather, the Commonwealth was required to prove
more specifically that the defendant willfully photographed a
victim he knew to be nude or partially nude. See G. L. c. 272,
§ 105 (b), first par. ("Whoever willfully photographs . . .
another person who is nude or partially nude . . ."). Cf.
Commonwealth v. Castro, 99 Mass. App. Ct. 502, 508 (2021)
(Commonwealth must "prove the defendant's specific intent at the
time of the actus reus -- . . . the taking of the photograph").
And the defendant argues that here, the Commonwealth failed to
prove such willfulness, because the evidence presented at trial
was "equally or more consistent" with accidental taking of the
photograph.
The Commonwealth presented sufficient circumstantial
evidence to prove this element. See Commonwealth v. Gonzalez,
475 Mass. 396, 414 (2016) (intent is "rarely proved by direct
evidence" [citation omitted]). The jury could infer from the
empty camera box located in the defendant's dresser that the
camera had been installed by the defendant during his residency
10
at the apartment. He had installed it in a location that the
jury could infer was intended to make the camera less
conspicuous to visitors; it was positioned high on the wall,
between the corner and a protruding dark-colored pipe, and close
to a dark gap between the tarp ceiling and wall. He also had
installed it so that it was pointed directly at the couch where
the defendant's sexual encounter with the victim began. The
defendant then demonstrated his knowledge that he had
photographed the sexual encounter with the victim when, upon
being contacted again by the victim, he responded with a
photograph of the encounter.
The jury also reasonably could find that the defendant made
statements evincing consciousness of guilt. See MacCormack, 491
Mass. at 856 ("Evidence of consciousness of guilt, while not
conclusive, may be considered in conjunction with other evidence
to establish guilt beyond a reasonable doubt"). When the victim
questioned the defendant's conduct in "secretly recording guys
that come over" and raised the prospect of contacting the
police, the defendant did not state that the recording was
accidental and instead responded, "Block u[.] Bye." The
defendant also later stated to the police, while laughing, that
he had made "porno," thus inferably attempting to minimize his
conduct.
11
From all of this evidence, considered as a whole in the
light most favorable to the Commonwealth, the jury reasonably
could conclude beyond a reasonable doubt that the defendant
acted willfully in photographing the nude victim during their
encounter. See MacCormack, 491 Mass. at 860-861 (while "no
single inference the jury reasonably could have drawn would have
been sufficient, in isolation, to establish guilt beyond a
reasonable doubt," when "[c]ombined, . . . those reasonable
inferences create a 'fabric of proof' that is sufficient").
Although the inferences urged by the Commonwealth were not
"necessary or inescapable," they were "reasonable and possible"
(citation omitted). Witkowski, 487 Mass. at 679.
The evidence did not, as the defendant contends, "tend[]
equally" to support his accident theory (quotation and citation
omitted). Rodriguez, 456 Mass. at 582. The defendant argues
that the same evidence could result from a chain of events in
which he did not willfully photograph the victim in the nude and
instead installed the camera for security purposes, forgot about
the camera during the encounter with the victim, later
discovered the photograph, and commented to police with laughter
at accidentally making "porno." There was, however, no evidence
at trial of such an intervening discovery of an accidental
recording; instead, as discussed, on being contacted again by
the victim, the defendant sent him the photograph and then made
12
no claim of an accident in response to the victim's accusation
of "secretly recording guys that come over." Although no
evidence definitively disproved the accident defense, the jury
were entitled to find beyond a reasonable doubt that the
photograph was taken intentionally based on the totality of the
evidence described above and the permissible inferences
therefrom. See Witkowski, 487 Mass. at 681 n.6 (when
"conflicting inferences are possible from the evidence, it is
for the jury to determine where the truth lies" [quotation and
citation omitted]).
Our holding today does not, as the defendant claims, impose
strict liability for any accidental recording of nudity by a
home security camera. To obtain a conviction of photographing
an unsuspecting nude person under G. L. c. 272, § 105 (b), first
par., the Commonwealth must prove that the defendant willfully,
rather than accidentally, recorded a victim whom the defendant
knew to be nude or partially nude. Here, the Commonwealth's
evidence -- including the defendant's placement of the camera,
his retrieval and transmission of the photograph upon being
contacted by the victim, and his actions after being confronted
by the victim -- was sufficient to prove that the defendant
acted willfully in photographing the victim in the nude.
b. Evidence of intent to secretly conduct or hide
photographing. For similar reasons, the Commonwealth's
13
circumstantial evidence also was sufficient to prove that the
defendant intended to "secretly conduct or hide" his
photographing of the victim in the nude. G. L. c. 272,
§ 105 (b), first par.
As discussed, the defendant installed the camera in a
location the jury reasonably could find was chosen in order to
make the camera less conspicuous to visitors: high on the wall,
near a dark-colored pipe and a dark gap between the ceiling and
wall. Although the camera remained visible in that location,
the jury were entitled to find that the defendant sought to
prevent others from noticing it through the manner of its
installation.
In addition, the defendant never notified the victim of the
existence of the camera in the corner of the dimly lit room, let
alone obtaining the victim's consent to photograph their
encounter. The jury could infer that the defendant knew the
victim was unlikely to notice the camera in the location where
he had installed it, in a ceiling corner of the dimly lit room.
Accordingly, the jury reasonably could have found that the
defendant's failure to alert the victim to the camera's presence
or obtain his consent was part of a scheme to hide the
defendant's photographing of the encounter.3
3 The defendant argues that because lack of consent is a separate element of the offense, evidence of lack of consent
14
Finally, the defendant's profile on the online application
stated, "I will never make videos." In the circumstances here
-- where the defendant installed a camera in a ceiling corner of
his living room, pointed the camera at a couch, and then used
the camera to record a sexual encounter on that couch with a
person he met through the online application -- the jury could
infer from the defendant's statement that he was attempting to
reassure unsuspecting prospective visitors that he would not
record them, despite planning to do exactly that.
Taken together, this evidence was sufficient to prove
beyond a reasonable doubt that the defendant intended to hide or
conduct secretly his photographing of the victim during their
sexual encounter. See MacCormack, 491 Mass. at 860-861. As
with his willfulness argument, the defendant's argument based on
an alternate innocent explanation for the evidence is
cannot additionally prove his intent to secretly conduct or hide his photographing of the victim. However, evidence is relevant as long as "it has a rational tendency to prove a material issue" (citation omitted). Commonwealth v. Bresilla, 470 Mass. 422, 436 (2015). Here, considered together with the evidence that the defendant had installed the camera pointed at the couch and in a location inferably intended to make it less conspicuous, the evidence of the defendant's failure to inform the victim of the camera's existence or seek his consent during their encounter on the couch tends to prove the defendant's intent to hide and keep secret the photographing of the victim. See Castro, 99 Mass. App. Ct. at 508 (evidence of lack of consent, considered together with fact that victim was asleep and other evidence, could be viewed by rational juror as evidence that defendant intended to conduct activity secretly).
15
unavailing. The defendant emphasizes that the camera was
installed openly on the wall, unobscured and unaltered. Cf.
Commonwealth v. Wassilie, 482 Mass. 562, 563-564 (2019)
(defendant concealed camera in bathroom by wrapping it with
paper towels). And, he argues, his failure to notify and obtain
consent from the victim was consistent with the defendant
forgetting that a camera was installed for security purposes and
photographing the encounter only inadvertently. However,
viewing the evidence in the light most favorable to the
Commonwealth, see Latimore, 378 Mass. at 677, for the reasons we
have stated, the jury reasonably could find that the defendant
installed the camera in the manner he did and then failed to
mention its existence to the victim in order to hide and
secretly conduct his photographing of the victim in the nude.
See Witkowski, 487 Mass. at 679, 681 n.6.
c. Jury instruction on willfulness. The defendant also
argues that the judge's instructions to the jury materially
misstated the law by permitting the jury to conclude that the
defendant acted willfully based solely on a finding that he
intended to photograph (such as by installing and operating an
around-the-clock security camera), without further finding that
he intended to photograph the victim in the nude.
"We evaluate jury instructions as a whole to determine how
a reasonable juror would understand them." Commonwealth v.
16
Carvajal, 496 Mass. 490, 500 (2025). "While trial judges are
not required to use any particular phrasing, the instructions
must convey the correct legal standard." Id. Because the
defendant did not object to the instruction on willfulness at
trial, "we review [his] claim to determine whether there was an
error and, if so, whether the error created a substantial risk
of a miscarriage of justice." Commonwealth v. Kelly, 470 Mass.
682, 697 (2015).
We discern no error in the jury instruction considered as a
whole, in view of the undisputed evidence that the defendant was
with the nude victim at the time of the recording. Consistent
with Instruction 6.530 of the Criminal Model Jury Instructions
for Use in the District Court (2021), the judge broke the
offense into discrete elements, including the element "that the
defendant willfully photographed, videotaped or electronically
surveilled the alleged victim." The judge subsequently
elaborated that, to conclude "that the defendant acted willfully
in recording," the jury would have to "make a decision about the
defendant's state of mind at the time of the incident, and
whether his actions were intentionally [sic], and not accidental
or due to some inadvertence or inattentiveness." The judge also
instructed the jury that to convict the defendant they had to
find "that the alleged victim was nude or partially nude at the
time."
17
In the circumstances of this case, these instructions
sufficed to convey to the jury that they could not convict the
defendant without finding that he willfully photographed the
victim in the nude. See Kelly, 470 Mass. at 698 (elements of
crime "cannot be divorced from the facts surrounding" incident);
Commonwealth v. Dyer, 389 Mass. 677, 684 (1983) (no error where
"[i]n the context of this trial, the charge as a whole was
sufficient to convey" relevant intent standard). With respect
to the element of willfulness in photographing the alleged
victim, the jury were instructed to consider "the defendant's
state of mind at the time of the incident" and whether his
conduct at that time was intentional or accidental, and they
also were instructed that the alleged victim had to be "nude or
partially nude at the time." In the context of this trial,
where it was undisputed that the defendant was in the room with
the nude victim at the time the photograph was taken and thus
knew of the victim's nudity, a reasonable jury would have
understood from the instructions as a whole that to convict the
defendant, they had to conclude that the defendant willfully
photographed the victim while the victim was in the nude. There
was therefore no error in the instructions as to the required
18
intent.4 Cf. id. at 683 ("The concept of intent may be conveyed
to the jury in a variety of ways").
2. Dissemination. Lastly, the defendant contends that his
conduct of sending the photograph of the victim to the victim
did not, as a matter of law, amount to "disseminat[ing]" the
photograph within the meaning of G. L. c. 272, § 105 (c), first
par.5 Based on the text, structure, and purpose of the statute,
he argues, "disseminat[ion]" requires sending the image to a
third party.6 Alternatively, he contends, the statute is at
least ambiguous, and thus the rule of lenity should apply. The
Commonwealth urges instead that the definition of
"[d]isseminate" set forth in G. L. c. 272, § 31, should apply,
and that definition has been interpreted to include sending an
image to the individual depicted, see Commonwealth v. Ubeda, 99
For clarity in future cases, a model instruction for the
4
offense is set forth in the Appendix.
General Laws c. 272, § 105 (c), first par., provides:
5
"Whoever willfully disseminates the visual image of another person, with knowledge that such visual image was unlawfully obtained in violation of the first and second paragraphs of subsection (b) and without consent of the person so depicted, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or in the state prison for not more than 5 years or by a fine of not more than $10,000, or by both such fine and imprisonment."
In light of the facts of this case, we, like the parties,
6
at times refer to "sending" the photograph in discussing the question presented regarding the meaning of dissemination in § 105 (c). We recognize, however, that an image may be disseminated through other methods.
19
Mass. App. Ct. 587, 595-596 (2021). We review this question of
statutory interpretation de novo. See Commonwealth v. Morrison,
494 Mass. 763, 769 (2024).
"Our primary goal in interpreting a statute is to
effectuate the intent of the Legislature." Commonwealth v.
Thanh Du, 495 Mass. 103, 105 (2024), quoting Commonwealth v.
Rainey, 491 Mass. 632, 641 (2023). We begin with the statute's
plain language, which is the "principal source of insight into
legislative intent" (quotation and citation omitted). Cruz v.
Commonwealth, 494 Mass. 800, 804 (2024). We "endeavor to
ascertain that intent from 'all [the statute's] words construed
by the ordinary and approved usage of the language, considered
in connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished.'" Thanh Du, supra at 106, quoting Rainey, supra.
Thus, we do not "determine the plain meaning of a statute in
isolation, but, rather, . . . [in consideration of] the
surrounding text, structure, and purpose of the [statute]"
(quotation and citation omitted). Commonwealth v. Russo, 494
Mass. 356, 365 (2024).
The disputed dissemination provision is part of G. L.
c. 272, § 105, a statutory scheme for punishing "'Peeping Tom'
voyeurism" that establishes a total of five criminal offenses.
Wassilie, 482 Mass. at 565. Three of these offenses are set
20
forth in § 105 (b), which prohibits photographing, videotaping,
or electronically surveilling persons in certain circumstances.
The subsection's first paragraph, as discussed, criminalizes
recording an unsuspecting nude or partially nude person; the
second paragraph criminalizes surreptitious recording of the
sexual or other intimate parts of a person under or around the
person's clothing, known colloquially as "upskirting," see
Wassilie, supra at 564-565; and the third paragraph criminalizes
"upskirting" of minors. G. L. c. 272, § 105 (b).
Section 105 (c) then additionally punishes the
"disseminat[ion]" of visual images obtained through the means
prohibited in § 105 (b). The first paragraph of § 105 (c)
prohibits "disseminat[ing]" any "visual image of another person
[that the disseminator knew] was unlawfully obtained in
violation of the first and second paragraphs of [§ 105] (b),"
i.e., an image of an unsuspecting nude or partially nude person
or an "upskirting" image of an adult. Obtaining "consent of the
person . . . depicted" is a defense to these offenses. G. L.
c. 272, § 105 (c), first par. The second paragraph of § 105 (c)
prohibits the dissemination of any "visual image [that the
disseminator knew] was unlawfully obtained in violation of the
third paragraph of [§ 105] (b)," i.e., an "upskirting" image of
a minor. Consent is not a defense to this offense against a
minor. See G. L. c. 272, § 105 (c), second par.
21
The statute establishes escalating punishments for these
offenses, with the dissemination offenses in § 105 (c) punished
more harshly. Recording an unsuspecting nude or partially nude
person or "upskirting" an adult is punishable by up to two and
one-half years in a house of correction, a fine of up to $5,000,
or both. G. L. c. 272, § 105 (b), first & second pars.
Disseminating an image obtained through these prohibited means,
however, is punishable by up to five years in State prison, a
fine of up to $10,000, or both. G. L. c. 272, § 105 (c), first
par. Similarly, while "upskirting" a minor is punishable by up
to five years in State prison, G. L. c. 272, § 105 (b), third
par., disseminating an image created through this prohibited
means is punishable by up to ten years in State prison, G. L.
c. 272, § 105 (c), second par.
The statute's definitions section does not supply a
definition of "disseminate[]." See G. L. c. 272, § 105 (a). To
ascertain the meaning of terms not defined in a statute, we look
to "sources presumably known to the statute's enactors, such as
their use in other legal contexts and dictionary definitions."
Commonwealth v. Tinsley, 487 Mass. 380, 386-387 (2021).
At the time this statute was enacted in 2008, see St. 2008,
c. 451, § 149, Black's Law Dictionary defined "dissemination" as
"[t]he act of spreading, diffusing, or dispersing; esp[ecially],
the circulation of defamatory matter," Black's Law Dictionary
22
506 (8th ed. 2004). See also Merriam-Webster's Collegiate
Dictionary 362 (11th ed. 2007) (defining "disseminate" as "to
spread abroad as though sowing seed" or "to disperse
throughout"); American Heritage Dictionary of the English
Language 523 (4th ed. 2006) ("disseminate" is "[t]o scatter
widely, as in sowing seed" or "[t]o spread abroad; promulgate").
The plain meaning of "disseminate[]" thus involves spreading or
dispersing material.
In considering the meaning of this term in the context of
§ 105 (c), we take further guidance from the statute's structure
and purpose, see Russo, 494 Mass. at 365, including, in
particular, the graduated sentencing scheme created by the
Legislature. Such a graduated scheme reflects the Legislature's
"apparent belief that the greater the harm to the victim, the
harsher the punishment should be for the offender." United
States v. Gordon, 875 F.3d 26, 33 (1st Cir. 2017). See, e.g.,
Commonwealth v. Daley, 463 Mass. 620, 625 n.4 (2012) (graduated
sentencing scheme for leaving scene of vehicle collision based
on level of harm caused by collision); Commonwealth v. JeanPierre, 65 Mass. App. Ct. 162, 165 & n.4 (2005) (graduated
scheme of assault and battery offenses and penalties based on
factors including degree of harm to victim).
Here, the fact that the Legislature set penalties for
violations of § 105 (c) twice as great as those under § 105 (b)
23
evinces an apparent view on the part of the Legislature that the
harm caused by "disseminat[ing]" the visual image of a victim is
distinctly greater than the initial harm caused by creating the
image. Indeed, we have already observed that, while the general
purpose of § 105 is to protect both adults and minors against
invasions of their privacy, Wassilie, 482 Mass. at 569-570, the
prohibition on dissemination in § 105 (c) more specifically
"recognizes . . . individuals' privacy interests in avoiding
. . . subsequent public distribution of any . . . invasive
images" taken in violation of the statute, Lanier v. President
& Fellows of Harvard College, 490 Mass. 37, 56 (2022). The
dissemination provision protects against the many additional
harms to victims that may be caused when images taken in
violation of § 105 (b) are spread to "friends, family, bosses,
co-workers, teachers, fellow students, or random strangers on
the internet." State v. Casillas, 952 N.W.2d 629, 641 (Minn.
2020), cert. denied, 142 S. Ct. 90 (2021). See id. at 641-642
(describing reputational, economic, and other harms caused by
nonconsensual dissemination of private sexual images); State v.
VanBuren, 210 Vt. 293, 299 (2019) ("nonconsensual dissemination
of such intimate images . . . can cause public degradation,
social isolation, and professional humiliation for the victims"
[quotation and citation omitted]).
24
We conclude, based on the ordinary meaning of
"disseminate[]" and the graduated scheme of which § 105 (c) is a
part, that "disseminat[ion]" under § 105 (c) requires dispersing
the visual image to at least one third party. By providing for
a far greater penalty for subsequent dissemination of a visual
image created in violation of the statute, the Legislature
apparently acknowledged and sought to redress the distinct harms
to victims caused by spreading such invasive images to others.
Transmitting the image solely to the victim, while no doubt in
many cases a source of intense distress to the victim, does not
entail these same harms.7 And, to the extent there is any
ambiguity regarding whether sending an image of the victim to
the victim constitutes "disseminat[ing]" the image within the
meaning of this statute, we must resolve the ambiguity in the
defendant's favor under the rule of lenity. See Commonwealth v.
Garafalo, 495 Mass. 746, 761 (2025).
We are not persuaded to conclude otherwise by the
Commonwealth's reliance on the definition of "[d]isseminate" in
G. L. c. 272, § 31, as interpreted in Ubeda, 99 Mass. App. Ct.
at 595-596. In Ubeda, supra, the Appeals Court held that the
7 The Commonwealth highlights, in particular, that sending the image to the victim may be viewed by the victim as a veiled threat that the defendant may send the image to others. Even so, sending the image solely to the victim does not entail the same harms as sending it to third parties.
25
defendant "disseminated" child pornography in violation of G. L.
c. 272, § 29B (a), by sending nude photographs to the minor
depicted in them. Importantly, however, the Legislature has
defined the term "disseminate" for purposes of the child
pornography statute. See G. L. c. 272, § 31 ("Disseminate"
means "to import, publish, produce, print, manufacture,
distribute, sell, lease, exhibit or display"). The Legislature
expressly listed the statutes in which this definition applies,
and the listed statutes do not include § 105 (c). See G. L.
c. 272, § 31 (definitions applicable to terms "[a]s used in"
G. L. c. 272, §§ 28, 28C-28E, 29, 29A-29B, 30, 30D). Moreover,
the Legislature already had established the definition of
"[d]isseminate" in § 31 when it enacted § 105 (c) in 2008. See
St. 1974, c. 430, § 12. The Legislature thus could have
provided that the definition in § 31 applied to this statute --as it did for the child pornography statute at issue in Ubeda,
see St. 1982, c. 364, § 3 -- but did not do so. See Suliveres
v. Commonwealth, 449 Mass. 112, 116 (2007) (we assume
Legislature is aware of existing statutes when enacting new
laws). We therefore conclude that the Legislature did not
intend for the definition of "[d]isseminate" in § 31 to control
the meaning of § 105 (c). See Commonwealth v. Smith, 431 Mass.
417, 423 & n.7 (2000) (declining to follow definition of "sexual
intercourse" in G. L. c. 272, § 31, in interpreting G. L.
26
c. 272, § 17, because Legislature "expressly limited"
application of § 31 definitions to certain sections of G. L.
c. 272, not including § 17).8
In sum, we hold that a violation of § 105 (c) requires
proof that the defendant disseminated the visual image of the
victim taken in violation of § 105 (b) to a third party.
Because the Commonwealth did not present such evidence here, it
failed to meet its burden of proof.
Conclusion. For the foregoing reasons, we affirm the
judgment convicting the defendant under G. L. c. 272, § 105 (b),
and reverse the judgment convicting the defendant under G. L.
c. 272, § 105 (c). We set aside the latter verdict and direct
that a judgment of not guilty enter on that charge.
So ordered.
8 The Commonwealth argues that, even if not controlling, the meaning of "disseminate" in the context of § 29B (a) should be highly persuasive here, given that § 105 (c) also criminalizes the dissemination of images of nude or partially nude persons. Cf. Smith, 431 Mass. at 420 ("When interpreting undefined terms in a statute, it is certainly permissible to draw on the meaning that has settled on the same language in other legislation . . . [particularly] when the two statutes relate to the same class of persons or things or share a common purpose"). But the Commonwealth has not directed us to a case in which we have disregarded the ordinary meaning of an undefined term in favor of a statutory definition expressly limited in application to certain other statutes. And, as noted, in Smith, supra at 423 & n.7, we declined to apply a definition set forth in § 31 in the context of another provision in chapter 272 not listed in § 31.
Appendix.
Model Jury Instruction -- Secretly Photographing
an Unsuspecting Nude Person
The defendant is charged with secretly (photographing) (videotaping) (electronically surveilling) a nude or partially nude person.
In order to prove the defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt:
First: That the defendant (photographed) (videotaped) (electronically surveilled) [the alleged victim] while [the alleged victim] was nude or partially nude;
Second: That the defendant did so without [the alleged victim's] knowledge and consent;
Third: That the defendant acted willfully in
(photographing) (videotaping) (electronically surveilling) [the alleged victim] while the defendant knew [the alleged victim] to be nude or partially nude;
Fourth: That the defendant intended to secretly conduct or hide such activity; and
Fifth: That [the alleged victim] had a reasonable
expectation of privacy in not being so (photographed) (videotaped) (electronically surveilled).
To prove the first element, the Commonwealth must prove that the defendant (photographed) (videotaped) (electronically surveilled) [the alleged victim]. (The term "electronically surveils" means "to view, obtain or record a person's visual image by the use or aid of a camera, cellular or other wireless communication device, computer, telephone or other electronic device.")
The Commonwealth also must prove that [the alleged victim] was nude or partially nude at the time of the (photographing) (videotaping) (electronic surveillance). One is partially nude when the genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola is exposed. The "areola" is the area of dark-colored skin on the breast that surrounds the nipple.
2
To prove the second element, the Commonwealth must prove that [the alleged victim] did not know of or consent to the (photographing) (videotaping) (electronic surveillance).
To prove the third element, the Commonwealth must prove that the defendant acted willfully in (photographing) (videotaping) (electronically surveilling) [the alleged victim] while the defendant knew [the alleged victim] to be nude or partially nude. This requires you to make a decision about the defendant's state of mind at the time -- whether his (her) actions were intentional and not accidental or due to inadvertence or inattention.
To prove the fourth element, the Commonwealth must prove that the defendant intended to secretly conduct or hide such activity. This element also requires you to make a decision about the defendant's state of mind at the time. A person's intent is his or her purpose or objective. In our everyday affairs, we often must decide from the actions of others what their intent is. You should consider all the evidence, and any reasonable inferences you draw from the evidence, in determining whether the defendant acted with the intent to secretly conduct or hide his (her) activity.
To prove the fifth element, the Commonwealth must prove that [the alleged victim] had a reasonable expectation of privacy in not being (photographed) (videotaped) (electronically surveilled) at the time. Whether such an expectation is reasonable under the circumstances of this case is to be measured by common understanding and practices.
If the Commonwealth proved all five elements beyond a reasonable doubt, you should return a verdict of guilty. If the Commonwealth failed to prove any element beyond a reasonable doubt, you must find the defendant not guilty.