So holds the Massachusetts Supreme Judicial Court in Commonwealth v. Zubiel. The case involved a sting aimed at catching pedophiles. Zubiel approached a supposed 13-year-old online (actually an adult deputy sheriff), and engaged in sexually themed conversations with her. This was apparently likely a prelude to his trying to have sex with her, but he wasn’t prosecuted for attempted sex with a minor (perhaps because it wasn’t clear that his actions had gotten close enough to count as attempt). Instead, he was prosecuted for “attempt[ing] to disseminate matter harmful to a minor,” based on the sexual discussions. Note that the law of attempt, in Massachusetts and other states, allows for punishment even when the crime was factually impossible, as when someone tries to kill with a gun that he thinks is loaded but proves to be unloaded, or when someone tries to have sex with or send sexually themed matter to someone who he thinks is a minor but proves not to be a minor.
Here’s the heart of the court’s decision:
General Laws c. 272, § 28, 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 G. L. c. 272, §§ 28-30D,(3) 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.” …
Penal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Therefore, criminal statutes are strictly construed against the government….
There are four broad categories of “[m]atter:” (1) any handwritten or printed material; (2) any visual representation; (3) any live performance; and (4) any sound recording….
[Visual representation:] General Laws c. 272, § 31, does not define “visual representation.” However, it does define “[v]isual material,” listing numerous specific media that are considered “visual material” under the statute [– ” any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer”]. When elements are listed in a series, the rules of statutory construction require the general phrase to be construed as restricted to elements similar to the specific elements listed. This principle, ejusdem generis, “allow[s] the specific words to identify the class and [restricts] the meaning of general words to things within the class.”
Here, the specific elements listed as “[v]isual material” are limited to the class of pictures — moving or still, whether on paper, film, or computer. The statute indicates nowhere an intent by the Legislature to include words, such as those used in online conversations, in this definition.
In addition, the use of the phrase “visual representations” in the definition of “[v]isual material” provides insight into the definition of “visual representation.” The definition of “[v]isual material” includes “pictures, photographs or similar visual representations.” The inclusion of “similar visual representations” following the words “pictures” and “photographs” indicates that it refers to images, not purely written words.
Because the statute provides no definition of “visual representation,” this court must interpret the words of the statute according to their usual and accepted meaning. No Massachusetts court has defined “visual representation” to include pure text, such as the online conversations in this case. The ordinary meaning of “visual representation” does not include purely textual material. Accordingly, we hold that the Legislature did not intend online conversation to be considered as “visual representation” under § 31….
[Handwritten material:] The online conversations in this case were not handwritten. While there is no statutory definition of “handwritten” materials, in the absence of such definition, “we give [the words] their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose…. We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.”
The relevant definition of the word “write” is “to form or trace (a character or series of characters) on paper or other suitable material with a pen or pencil.” … [H]andwriting is what it is commonly understood to be: writing performed by hand with a pen or pencil, as distinguished from print, which is “mechanically produced.” … [T]he online conversations in this case, as they were not written with pen or pencil, cannot be considered “handwritten” materials under § 31.
[Printed material:] [B]ecause there is no definition of “printed materials” in § 31, we look to the usual and accepted meaning of the words, from sources presumably known to the Legislature at the time the statute was enacted. Webster’s Third New Int’l Dictionary defines the verb “print” as “to make a copy of by impressing paper against an inked printing surface or by an analogous method.” Here, Zubiel electronically transmitted text, which did not involve the impression of paper against an inked printing surface, and did not cause any mechanically produced text to be printed on paper. Because criminal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited,” and any ambiguity in such statutes must be strictly construed against the government, we cannot hold that electronically transmitted text falls within the definition of “printed material.” …
If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.
The statutory interpretation decision sounds right to me, though I do think the legislature should broaden the statute to include electronically transmitted text.