The Volokh Conspiracy - Proposed Ban on Making and Distributing Pornography Involving >60-Year-Olds and the Disabled (Including Spouses or Lovers Consensually Photographing Each Other):

Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection."

The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)

Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.

The bill text is here; the provisions that would be amended are here and here; and the definitions of "elder" (anyone age 60 or older) and "person with a disability" ("a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection") are here. If anyone can point me to a version that merges the existing text with the changes, I'd love to link to it.

UPDATE: Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime (inserted text underlined, especially relevant text italicized):

Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.

(Note: I originally misread this as requiring a mandatory minimum sentence of 10 years, but a commenter correctly pointed out that a court could in the alternative impose a fine of at least $10,000 — much better than a 10-year sentence, but still entirely improper.)

	[Eugene Volokh, March 30, 2009 at 12:10pm] Trackbacks Proposed Ban on Making and Distributing Pornography Involving >60-Year-Olds and the Disabled (Including Spouses or Lovers Consensually Photographing Each Other): Yup, the law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection." The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?) Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense. The bill text is here; the provisions that would be amended are here and here; and the definitions of "elder" (anyone age 60 or older) and "person with a disability" ("a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection") are here. If anyone can point me to a version that merges the existing text with the changes, I'd love to link to it. UPDATE: Note that the law isn't limited to making pornography for commercial purposes (since the child pornography law that it builds on covers noncommercial child pornography, too). That means that if 60-year-old spouses or lovers — or spouses or lovers of someone who is disabled — decide to photograph each other naked with "lascivious intent," they would be committing a crime (inserted text underlined, especially relevant text italicized): Whoever, either with knowledge that a person is a child under eighteen years of age, an elder or a person with a disability, or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, an elder or a person with a disability and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child, elder or person with a disability to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment. (Note: I originally misread this as requiring a mandatory minimum sentence of 10 years, but a commenter correctly pointed out that a court could in the alternative impose a fine of at least $10,000 — much better than a 10-year sentence, but still entirely improper.)