Commonwealth v. Zubiel

Commonwealth v. Zubiel, 921 N.E.2d 78 (Mass. 2010)

A Deputy Sheriff in Massachusetts created an undercover screen name, “Melissa QT 1995,” and set up a profile on Yahoo to conduct an undercover online investigation. The profile described “Melissa QT 1995” as a thirteen year-old girl in the eighth grade. The defendant, Zubiel, who used the screen name “Ilikesports04,” first approached the undercover officer in a public chatroom. “Melissa QT 1995” informed Zubiel that she was thirteen years old, and Zubiel told her that he was twenty-five years old.

Zubiel and the undercover officer had four online conversations that were conducted via private instant messaging. In these conversations, Zubiel asked the officer for nude photographs, questioned her about her sexual experience, and finally set up an in-person meeting with her. Zubiel was arrested as he was walking toward apartment in which the undercover officer said “Melissa QT 1995” lived.

Procedural Posture
Zubiel was convicted on four indictments alleging an attempt to disseminate matter harmful to minors under a Massachusetts statute, General Laws c. 272, § 28. Zubiel appealed from his convictions, and the Supreme Judicial Court of Massachusetts transferred the case to its court on its own motion.

Are online, electronically transmitted conversations within the statutory definition of “matter,” which is defined 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?” G.L. c. 272, § 31.

No. Online conversations are neither “visual representations” nor “handwritten or printed material” for purposes of this Massachusetts statute; Zubiel’s conviction is reversed.

The statute at issue is G.L. c. 272, § 28, which 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 § 28, 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 conversations are not specifically included in the definition of “matter” under § 31. The Commonwealth argued that the online conversations should be either a “visual representation” or “handwritten or printed material” under the statute.

Visual representation – While “visual representation” is not defined in § 31, “visual material” is defined as follows: “Any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer.” Because “visual representation” is included as an element in a listed series, it must be “construed as restricted to elements similar to the specific elements listed.” Because the specific elements listed are limited to pictures – moving or still, regardless of whether they are on paper, film, or computer – “visual representation” does not fall within the class of specific elements listed. Additionally, because the ordinary meaning of “visual representation” does not generally include purely textual material, the Legislature did not intend online conversations to be “visual representations” under § 31.

Handwritten or printed material – Online conversations are not “handwritten.” In the absence of statutory definitions, words must be given “their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” As such, the relevant definition of “write” is “to form … on paper or other suitable material with a pen or pencil.” Webster’s Third New Int’l Dictionary 2640 (1993). Online conversations are not created with a pen or pencil and cannot be considered “handwritten.”

Similarly, lacking a statutory definition of “printed material,” the court must look to the usual and accepted meaning of these words. “Print” is defined as “to make a copy of or by impressing paper against an inked printing surface or by an analogous method.” Webster’s, supra at 1803. Zubiel’s online conversations did not involve paper and an inked printing surface, so they are outside the definition of “printed material.”

Although the legislative history does show an intent to protect children from sexual abuse and exploitation, the Legislature’s current definitions do not do so. If the Legislature wishes to include online conversations within the statutory definition of “matter” under § 31, “it is for the Legislature, not the court, to do so.”

Information on the web
This decision has engendered significant opposition and outrage in the media and court of public opinion. See Ken Pittman, Mass Supreme Court: Sexual Texts to Minors is OK, available at http://www.kenpittman.com/articles/191/1/Mass-Supreme-Court-Sexual-Texts-to-Minors-is-OK/Page1.html (“If you are a sick minded slapper preying on children then Massachusetts is on your top ten list of preferable places to live. . . . The climate is increasingly in favor of licentious practice, fostered by crazy loons wearing robes in our state's highest court.”).

Josh Nightingale
April 3, 2010

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