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Mass. high court: Sexual instant messages to minors are legal

By The Associated Press

BOSTON — The state's highest court has overturned the conviction of a man accused of sending sexually graphic instant messages to a 13-year-old girl, ruling that such messages aren't banned by Massachusetts law.

Matt Zubiel of Beverly was arrested in 2006 after driving to Marshfield to meet with the girl, who really was a Plymouth County Deputy Sheriff, authorities said. The next year, he was convicted of four counts of attempting to disseminate harmful material to a minor.

But in his appeal, Zubiel argued that the "harmful material" banned under the law didn't include sexually explicit instant messages, and the Supreme Judicial Court agreed on Feb. 5.

Justice Francis X. Spina wrote in Commonwealth v. Zubiel that the Legislature may have intended to make such messages illegal, but it never specifically did so.

"If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition ... it is for the Legislature, not the court, to do so," he wrote.

A number for Zubiel could not be immediately located. His attorney declined comment for this story.

Plymouth County District Attorney Timothy Cruz said he was disappointed with the ruling and called for lawmakers to update the statute.

"I think the SJC could have gone the other way with this, but in light of the fact that they haven't, I think now it's time for us to change the laws," he said. "Our kids today live in a cyberworld and I think for the most part, the cyberworld didn't exist when these laws were created."

State Sen. Cynthia Creem, chair of the Judiciary Committee, said she planned to file legislation to make obscene instant messages to minors illegal.

"It's incumbent on us to bring this law into the 21st century," said Creem, D-Newton.

The case began in February 2006, when a Plymouth County Deputy Sheriff Melissa Marino set up an Internet profile, described herself as 13 years old and invited people to contact her.

The then-25-year-old Zubiel began having online conversations with Marino by instant message. He eventually told her he'd like to teach her how to perform oral sex and was arrested at a Marshfield apartment complex where he had arranged to meet her, according to court papers. Police said Zubiel admitted "the thought was there for him to have sex with this minor."

Zubiel was convicted in a jury-waived trial and sentenced to a year in prison.

In his appeal, Zubiel argued that though the law listed more than a dozen examples of the obscene "matter" that adults can't give to minors, it didn't include instant messages.

The court considered whether instant messages could be included under three of the examples listed in the statute, but decided they didn't fit.

The SJC said the messages were not a "visual representation" of sexually explicit material, ruling that included only photographs and other images — not text. It ruled the instant messages weren't handwritten material because they weren't written with pen or pencil. And it said they weren't printed material because there was no paper involved.

David Yas, editor-in-chief of Lawyers Weekly, said the ruling was "a classic case of a law that hasn't been properly updated."

"Sometimes it needs a wake-up call like a case like this, to get all the way up to the Supreme Judicial Court ... before the alarm gets sounded," Yas said. "The good news is if this is a wake-up call, (the law) could, in fact, be fixed permanently."


California appeals court upholds Internet harmful-to-minors law

Judges determine that law 'targets only those who prey on minors to seduce them.' 08.11.00

Fla. high court upholds state's Internet child-sex laws

'The state has a compelling interest in protecting the physical and psychological well-being of minors from harmful materials,' says unanimous court. 11.17.06

N.H. lawmakers OK bill to protect kids online
Governor is expected to sign measure, which was designed to shield children from Internet predators and child pornographers. 06.09.08

Ohio high court narrowly interprets anti-porn law
Decision deals blow to free-speech advocates; case goes back to 6th Circuit. 01.27.10

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