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Massachusetts Law About Sex

Child Under Fourteen

MGL c.265, s. 13B. Indecent assault and battery on child under fourteen.

Whoever commits an indecent assault and battery on a child under the age of 14 shall be punished by imprisonment in the state prison for not more than 10 years, or by imprisonment in the house of correction for not more than 2½ years. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.

In a prosecution under this section, a child under the age of 14 years shall be deemed incapable of consenting to any conduct of the defendant for which such defendant is being prosecuted.

MGL c.265, s.13B-1/2 Commission of indecent assault and battery on a child under the age of 14 during commission of certain offenses or by mandated reporters; penalties

Whoever commits an indecent assault and battery on a child under the age of 14 and:

(a) the indecent assault and battery was committed during the commission or attempted commission of the following offenses:-- (1) armed burglary as set forth in section 14 of chapter 266; (2) unarmed burglary as set forth in section 15 of said chapter 266; (3) breaking and entering as set forth in section 16 of said chapter 266; (4) entering without breaking as set forth in section 17 of said chapter 266; (5) breaking and entering into a dwelling house as set forth in section 18 of said chapter 266; (6) kidnapping as set forth in section 26 of chapter 265; (7) armed robbery as set forth in section 17 of said chapter 265; (8) unarmed robbery as set forth in section 19 of said chapter 265; (9) assault and battery with a dangerous weapon or assault with a dangerous weapon, as set forth in sections 15A and 15B of said chapter 265; (10) home invasion as set forth in section 18C of said chapter 265; or (11) posing or exhibiting child in state of nudity or sexual conduct as set forth in section 29A of chapter 272; or

(b) at the time of commission of said indecent assault and battery, the defendant was a mandated reporter as is defined in section 21 of chapter 119, shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 10 years. The sentence imposed on such person shall not be reduced to less than 10 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct until he shall have served 10 years of such sentence. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.

In a prosecution under this section, a child under the age of 14 years shall be deemed incapable of consenting to any conduct of the defendant for which such defendant is being prosecuted.

MGL c.265, s.13B-3/4 Commission of indecent assault and battery on a child under the age of 14 by certain previously convicted offenders; penalties

Whoever commits an indecent assault and battery on a child under the age of 14 and has been previously convicted of or adjudicated delinquent or as a youthful offender for: indecent assault and battery on a child under 14 as set forth in section 13B; aggravated indecent assault and battery on a child under 14 as set forth in section 13B1/2; indecent assault and battery on a person 14 or older as set forth in section 13H; assault of a child with intent to commit rape as set forth in section 24B; rape of a child with force as set forth in section 22A; aggravated rape of a child with force as set forth in section 22B; rape and abuse of a child as set forth in section 23; aggravated rape and abuse of a child as set forth in section 23A; rape as set forth in section 22 or; a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority, shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 15 years. The sentence imposed on such person shall not be reduced to less than 15 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release or furlough or receive any deduction from his sentence for good conduct until he shall have served 15 years of such sentence. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.

In any prosecution commenced pursuant to this section, introduction into evidence of a prior adjudication or conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of correction or the department of correction shall be prima facie evidence that the defendant before the court had been convicted previously by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant's guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant's commission of any prior conviction described therein. The commonwealth shall not be required to introduce any additional corroborating evidence or live witness testimony to establish the validity of such prior conviction.

Child Under Sixteen

MGL. c.265, s. 23. [Commonly known as the Statutory Rape Law]. Rape and abuse of child.

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.

MGL c.265, s. 23A Rape and abuse of child aggravated by age difference between defendant and victim or by when committed by mandated reporters; penalties

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age and:

(a) there exists more than a 5 year age difference between the defendant and the victim and the victim is under 12 years of age;

(b) there exists more than a 10 year age difference between the defendant and the victim where the victim is between the age of 12 and 16 years of age; or

(c) at the time of such intercourse, was a mandated reporter as defined in section 21 of chapter 119, shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 10 years. The sentence imposed on such person shall not be reduced to less than 10 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct until he shall have served 10 years of such sentence. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.

MGL c.265, s.23B Rape and abuse of child by certain previously convicted offenders; penalties

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age and has been previously convicted of or adjudicated delinquent or as a youthful offender for: indecent assault and battery on a child under 14 under section 13B; aggravated indecent assault and battery on a child under 14 under section 13B1/2; indecent assault and battery on a person 14 or older under section 13H; assault of a child with intent to commit rape under section 24B; rape of a child with force under section 22A; aggravated rape of a child with force under section 22B; rape and abuse of a child under section 23; aggravated rape and abuse of a child under section 23A; rape under section 22; or a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority, shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 15 years. The sentence imposed on such person shall not be reduced to less than 15 years, or suspended, nor shall any person convicted under this section be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct until he shall have served 15 years of such sentence. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.

In any prosecution commenced pursuant to this section, introduction into evidence of a prior adjudication or conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of correction or the department of correction, shall be prima facie evidence that the defendant before the court has been convicted previously by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant's guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant's commission of any prior conviction described therein. The commonwealth shall not be required to introduce any additional corroborating evidence or live witness testimony to establish the validity of such prior conviction.

MGL c.272, s. 35A. Unnatural and lascivious acts with child under 16.

Whoever commits any unnatural and lascivious act with a child under the age of sixteen shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years, and whoever over the age of eighteen commits a second or subsequent such offence shall be sentenced to imprisonment in the state prison for a term of not less than five years.

Commonwealth v. Bernardo B., 453 Mass. 158 (2009). Where a boy under 16 was charged for statutory rape for sexual activity with girls under 16, and only the boy was charged, the boy was entitled to discovery of statistical information relevant to his claim of selective prosecution.

Commonwealth v. Miller, 385 Mass. 521 (1982). The offense of statutory rape, G. L. c. 265, § 23, may be committed with or without any knowledge on the defendant's part of the age of the victim.

Commonwealth v. Elder, 389 Mass. 743 (1983). "Consent is not a defense to a charge of statutory rape."

Commonwealth v. Knap, 412 Mass. 712 (1992). "The only elements the Commonwealth must prove are (1) sexual or unnatural sexual intercourse with (2) a child under sixteen years of age"

E.C.O. v. Compton, 464 Mass. 558 (2013). "A person sixteen years of age or older is legally capable of 'consenting' to sexual intercourse. See G.L. c. 265, § 23; G.L. c. 277, § 39."

Child Under Eighteen

MGL c.272, s. 4. Inducing person under 18 to have sexual intercourse.

Whoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse shall be punished by imprisonment in the state prison for not more than three years or in a jail or house of correction for not more than two and one-half years or by a fine of not more than $1,000 or by both such fine and imprisonment.

Analogous to Federal laws 18 USC 2422 and 18 USC 2423 .

We could find only one case prosecuted under this law, Commonwealth v. Foley, 24 Mass. App. Ct. 114 (1987). in which a man offered a boy $5 to perform fellatio.

Fornication

MGL c.272, s. 18. Fornication.

Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.

Fort v. Fort, 12 Mass. App. Ct. 411 (1981). "The crimes of fornication, adultery, and lewd and lascivious cohabitation are never, or substantially never, made the subject of prosecution."

Attorney Gen. v. Desilets, 418 Mass. 316 (1994). "This statute is of doubtful constitutionality, at least as applied to the private, consensual conduct of persons over the age of consent."

Adultery

MGL c.272, s. 14 Adultery.

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Commonwealth v. Stowell, 389 Mass. 171 (1983). The court held that the Massachusetts adultery statute was not unconstitutional and that it was proper to have applied it to consensual acts between adults in private.

MGL. c.208, s.40 Cohabitation after Divorce

Persons divorced from each other cohabiting as husband and wife or living together in the same house shall be held to be guilty of adultery.

Sodomy

MGL c.272, s. 34. Crime against nature.

Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.

MGL c.272, s. 35. Unnatural and lascivious acts.

Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.

Commonwealth v. Balthazar, 366 Mass. 298 (1974). The "unnatural and lascivious acts" statute has been held to include public fellatio and oral-anal contact.. "must be construed to be inapplicable to private, consensual conduct of adults."

Gay & Lesbian Advocates & Defenders v. AG, 436 Mass. 132 (2002). "Our holdings in the Balthazar and Ferguson cases concerning acts conducted in private between consenting adults extend to § 34, as well." [private consenting acts will not be prohibited].

Lawrence v. Texas, 539 US 558 (June 2003). Texas sodomy law ruled unconstitutional by US Supreme Court.

History of Sodomy Laws in Massachusetts, Gay and Lesbian Archives of the Pacific Northwest, 2004. Traces Mass. laws from 1620-2004.

Incest

MGL c.272, s. 17. Incestuous marriage or intercourse

Persons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or have sexual intercourse with each other, or who engage in sexual activities with each other, including but not limited to, oral or anal intercourse, fellatio, cunnilingus, or other penetration of a part of a person's body, or insertion of an object into the genital or anal opening of another person's body, or the manual manipulation of the genitalia of another person's body, shall be punished by imprisonment in the state prison for not more than 20 years or in the house of correction for not more than 21/2 years.

Bigamy

MGL c.272, s. 15. Section 15. Polygamy.

Whoever, having a former husband or wife living, marries another person or continues to cohabit with a second husband or wife in the commonwealth shall be guilty of polygamy, and be punished by imprisonment in the state prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than five hundred dollars; but this section shall not apply to a person whose husband or wife has continually remained beyond sea, or has voluntarily withdrawn from the other and remained absent, for seven consecutive years, the party marrying again not knowing the other to be living within that time, nor to a person who has been legally divorced from the bonds of matrimony.

Bestiality

MGL c.272, s. 34. Crime against nature.

Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.

Prostitution

MGL c.272, s. 2 Enticing away a person for prostitution or sexual intercourse.

MGL c.272 s. 4A Inducing minor into prostitution; penalties.

MGL c.272, s. 4B Living off or sharing earnings of minor prostitute; penalties.

MGL c.272, s. 7 Support from, or sharing, earnings of prostitute.

MGL c.272, s.8 Soliciting for prostitute.

MGL c.272 s. 12 Procuring person to practice, or enter a place for, prostitution; employment office procuring person.

MGL c.272 s. 13 Detaining, or drugging to detain, person in place for prostitution.

MGL c.272 s. 53A Engaging in sexual conduct for a fee; penalty.