Section 43A. (a) Whoever willfully and maliciously engages in a knowing
pattern of conduct or series of acts over a period of time directed at a specific
person, which seriously alarms that person and would cause a reasonable person
to suffer substantial emotional distress, shall be guilty of the crime of criminal
harassment and shall be punished by imprisonment in a house of correction for
not more than 21/2 years or by a fine of not more than $1,000, or by both such
fine and imprisonment. The conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a
telephonic or telecommunication device or electronic communication device
including, but not limited to, any device that transfers signs, signals, writing,
images, sounds, data or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photo-electronic or photo-optical system,
including, but not limited to, electronic mail, internet communications, instant
messages or facsimile communications.[ Subsection (a) as amended by 2024, 118, Sec. 5 effective September 18, 2024.
For text effective until September 18, 2024, see above.](a) Whoever willfully and maliciously engages in a knowing pattern of conduct
or series of acts over a period of time directed at a specific person, which
seriously alarms that person and would cause a reasonable person to suffer
substantial emotional distress, shall be guilty of the crime of criminal harassment
and shall be punished by imprisonment in a house of correction for not
more than 21/2 years or by a fine of not more than $5,000, or by both such fine
and imprisonment. The conduct or acts described in this paragraph shall
include, but not be limited to, conduct or acts conducted by mail or by use of a
telephonic or telecommunication device or electronic communication device
including, but not limited to, any device that transfers signs, signals, writing,
images, sounds, data or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photo-electronic or photo-optical system,
including, but not limited to, electronic mail, internet communications, instant
messages or facsimile communications.[ Subsection (b) effective until September 18, 2024. For text effective September
18, 2024, see below.](b) Whoever, after having been convicted of the crime of criminal harassment,
commits a second or subsequent such crime, or whoever commits the crime of
criminal harassment having previously been convicted of a violation of section
43, shall be punished by imprisonment in a house of correction for not more
than two and one-half years or by imprisonment in the state prison for not more
than ten years.[ Subsection (b) as amended by 2024, 118, Sec. 6 effective September 18, 2024.
For text effective until September 18, 2024, see above.](b)(1) As used in this subsection, the following words shall have the following
meanings unless the context clearly requires otherwise:"Digitization", the creation or alteration of visual material including, but not
limited to, through the use of computer-generated images, in a manner that
would falsely appear to a reasonable person to be an authentic representation of
the person depicted."Distribute", give, sell, transfer, disseminate, publish, upload, circulate, broadcast
or engage in any other form of transmission, electronic or otherwise."Identifiable", recognizable from the visual material itself or from information
offered in connection with the visual material."Partially nude", the exposure of fully uncovered buttocks or all or part of the
human genitals or the female nipple-areolar complex."Publish", (i) disseminate an image with the intent that it be made available
by any means to any person or other legal entity; (ii) disseminate an image with
the intent that it be sold by another person or legal entity; (iii) post, present,
display, exhibit, circulate, advertise or allow access to an image by any means so
as to make such image available to the public; or (iv) disseminate an image with
the intent that it be posted, presented, displayed, exhibited, circulated, advertised
or made accessible by any means so as to make such image available to the
public."Visual material", a photograph, film, video or digital image or recording,
whether produced by electronic, mechanical or other means, or any part,
representation or reproduction thereof.(2) Whoever knowingly distributes visual material, including visual material
produced by digitization, depicting another person, who is either identifiable in
the visual material or identified by the distributing person, who is nude,
partially nude or engaged in sexual conduct and to whom the distribution causes
physical or economic injury or substantial emotional distress, and distributes
such visual material with: (i) the intent to harm, harass, intimidate, threaten,
coerce or cause substantial emotional distress; or (ii) reckless disregard for: (A)
the likelihood that the person depicted will suffer harm, harassment, intimidation,
threat, coercion or substantial emotional distress; (B) the depicted
person's lack of consent to the distribution of such visual material, including
material produced by digitization; and (C) the depicted person's reasonable
expectation that the visual material would remain private, shall be guilty of the
crime of criminal harassment and shall be punished by imprisonment in a house
of correction for not more than 21/2 years, by a fine of not more than $10,000 or
by both such fine and imprisonment. Nothing in this section shall preclude a
prosecution under section 29C of chapter 272.(3) For the purposes of this subsection, consent to the creation of visual
material shall not constitute consent to the distribution of the visual material.(4) This subsection shall not preclude other remedies available at law or in
equity including, but not limited to, the issuance by a court of competent
jurisdiction of appropriate orders to restrain or prevent the distribution of
visual material in violation of this subsection.(5) Visual material that is part of any court record arising from a prosecution
under this subsection shall not be open to public inspection and, unless
otherwise ordered in writing by the court, shall only be made available for
inspection by court personnel to a district attorney, a defendant’s attorney, a
defendant or a victim connected to such prosecution; provided, however, that
this paragraph shall not prohibit disclosure, inspection or other use of the visual
material in the underlying prosecution or any related court proceeding in
accordance with applicable evidentiary and procedural rules or a court order.(6) This subsection shall not apply to: (i) visual material involving nudity,
partial nudity or sexual conduct that is voluntary or consensual and occurring (A) in a commercial setting, or (B) in a place where a person does not have a
reasonable expectation of privacy; (ii) distribution made in the public interest,
including the reporting of unlawful conduct; (iii) lawful and common practices of
law enforcement, criminal reporting, corrections, legal proceedings or medical
treatment, including telemedicine; (iv) distribution of visual material that
constitutes a matter of public concern; (v) interactive computer services as
defined in 47 U.S.C. 230(f)(2) for content solely provided by another person; or(vi) information services or telecommunications services as defined in 47 U.S.C.
153 for content solely provided by another person.[ Subsection (c) added by 2024, 118, Sec. 6 effective September 18, 2024.](c) Whoever, after having been convicted of an offense under this section,
commits a second or subsequent offense or whoever commits an offense under
this section after having previously been convicted of a violation of section 43,
shall be punished by imprisonment in a house of correction for not more than
21/2 years or in a state prison for not more than 10 years, by a fine of not more
than $15,000 or by both such fine and imprisonment.