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So I Should Have Sexted that Minor Rather Than Sent a Letter?

February 12, 2010

The Boston Globe reports that Massachusetts’ highest court — the Supreme Justice Court (SJC) recently ruled that it is not illegal to send lewd messages to minors, as long as it’s done online — overturning the convictions of a dude who sent explicitly sexual text messages to a cop thinking she was a 13 year-old girl.

Although state law bans the dissemination of “any matter harmful to minors’’ – including photographs, magazines, movies, and “handwritten or printed material’’ – it does not mention instant messaging or other text sent online.

“The online conversations in this case, as they were not written with pen or pencil, cannot be considered `handwritten’ materials,’’ Justice Francis X. Spina wrote on behalf of the Supreme Judicial Court, in a ruling that illustrates how evolving technology outpaces changes in legal language.

“If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition,’’ the court added in the unanimous decision, “it is for the Legislature, not the court, to do so.’’

Really!  Talk about narrow interpretation.  Does this court think that clam chowder does not “include” Manhattan style?  I’m still too stunned to comprehend it.  But let’s parse it out.

First:  “any matter harmful to minors.”  Well that’s all-inclusive.  It could be lascivious Morse code under that clause  (Di-di-dah Di-dah-dit, Di-di-di-dit Dah-dah-dah Dah), or maybe Pig Latin (Aryay ooryay arentspay omehay?).

Then there’s “including” which is one of my pet peeves.  Legislatures can be forgiven for the ubiquitous statutory language “including, but not limited to” despite its redundancy.  “Including” means “including, but not limited to.”  But Legislatures must be careful about how things will be interpreted by the courts.  Still …

Seriously Honorable Dudes, what was the real agenda here?  No leap of logic is required to conclude that the statute encompasses texting — even if texting didn’t exist when it was drafted.  Letting that guy go to make the point that a statute needs updating seems a little extreme — especially when done by bizarre statutory construction, by the same progressive court that legalized same-sex marriage.

Oh well, a burgeoning sexual predator has a “Get Out of Jail Free” card, and as the article notes, the Mass. Legislature is busy drafting clearer language — most likely by including what was already included by implication, to make it even more inclusive … or something like that.

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