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The Use of Snapchat, Even Under More Innocent Circumstances, May Have Serious Criminal or Civil Implications

This week, two Massachusetts teenagers were convicted of sexually assaulting a heavily intoxicated 16-year old girl.  Another teenager had videotaped the incident and disseminated the videos on Snapchat, the hugely popular social media app.  The main evidence in the case came from another teenage girl who was not present at the scene but had received snapchat videos showing the victim naked, “almost in a headlock,” being fondled, kissed, or forced to perform sex acts, and slurring the word “stop.”  Although Snapchat automatically deletes video and images after they are viewed, the witness was able to preserve the images by saving screenshots of them on her phone.  The defense presented no witnesses, and the jury was out for less than a day before convicting the defendants on the charges, which could result in a sentence of as much as twenty years in prison.  The male teenager who took the videos, but did not participate in the sexual assault, had previously pled guilty to related charges.

The sexual assault of an incapacitated minor, whether documented by social media or not, is obviously an egregious crime with serious penalties, and the videotaping or photographing of a sexual assault of a minor, also violates a number of criminal laws.  However, Snapchat users, who are primarily in their teens or early twenties, may not realize that seemingly mundane photos or videos capturing everyday moments could also rise to the level of a crime or violate college or university policies against sexual harassment.

For example, an old Massachusetts law, codified at M.G.L. Ch. 272 § 105 and known as the “peeping Tom” law, prohibits under certain circumstances the willful photographing or videotaping of “another person who is nude or partially nude,” which is defined to include exposure of genitals, buttocks, pubic area, or parts of the female breast.  Such activity is prohibited if it is without the subject’s knowledge and consent and is “in a place and circumstance [in which he or she] would have a reasonable expectation of privacy.”  The law has since been updated to also specifically prohibit “upskirting,” the secret photographing or videotaping of a person’s intimate or sexual parts under their clothing.  Furthermore, an individual’s dissemination of such a visual image, if it was unlawfully obtained without the consent of the subject, also violates the law.  The maximum penalties for violating this law are imprisonment in the house of correction for two-and-a-half years or in state prison for five years and a fine of up to $10,000.

Many colleges and universities have strict sexual harassment provisions that prohibit the non-consensual photography or videotaping of individuals in sexual activity and the dissemination of such images.  Some schools have even broader provisions barring non-consensual visual recording of nudity, partial nudity, or even more expansively, a state of undress.  It is certainly common sense not to Snapchat an image of a person who is engaged in sexual activity or who is nude or partially nude without his or her authorization.  However, use of Snapchat and other social media is rampant in high school and college campuses.  As a result, many teens and college students may find themselves in situations with friends where they are conducting pranks or capturing “funny” moments that involve taking a video or photo of someone who is exposed in some way.  Because of Snapchat’s unique feature of deleting images immediately after dissemination, the individual taking the photo may not realize intimate body parts were captured (if done so inadvertently) and may not realize that recipients have screenshotted or otherwise saved the images.  While lack of willfulness may potentially be a defense to a criminal charge or school violation, students (and their parents) need to be vigilant about how they use Snapchat to avoid serious criminal consequences or school-related discipline.

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