The bill, an amendment to the state's laws prohibiting child pornography, was meant to protect people with mental disabilities, who cannot give consent and are often exploited sexually by caretakers or family members, said Reinstein, a Democrat from Revere...
"Basically, there's an issue of caretakers taking explicit photographs of elders and people with disabilities against their will," she said in a phone interview.
After consulting with advocacy groups about the legitimacy of the problem, Reinstein said she agreed to sponsor the bill. But it was written, she said, by a legislative committee, and the language is what has spurred the controversy.
Part of the bill states that people over age 60 and people with disabilities who have been declared mentally incompetent cannot give consent to erotic photographs, any more than a minor can give consent. But other parts of the bill only use the term "elders and persons with a disability," without referencing mental competence or consent.
As a result, said University of California-Los Angeles law professor Eugene Volokh, the bill could be interpreted as banning competent, consenting couples with disabilities from taking nude photographs of each other, or lovers over age 60 from making saucy pictures of themselves...
To his knowledge, Volokh said, no other state has a law that criminalizes sexual pictures of senior citizens or adults with disabilities regardless of consent...
"This is legislation that's trying to protect a vulnerable population from abuse," she (another commenter) said. "But it has to be carefully worded so as not to infringe on free speech rights."
And that, as they say, is that.
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