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A child can be ruled unclothed under state law if their clothing is sheer enough, court determines

The Massachusetts Appeals Court today upheld a South Shore man's conviction for possession of child pornography after determining that even though a girl in a photo on his computer had a sheer lingerie top on, she was "unclothed" for the purposes of the state law aimed at protecting minors from sexual exploitation through the production and distribution of child pornography.

Michael Graziano did not have to serve any jail time after his 2017 conviction in Plymouth, but the conviction means he has to register as a sex offender.

In an appeal of his sentence, Graziano's lawyer pointed, in part, to state law, which sets out several criteria by which a photo can be judged to be child pornography, including "a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child."

The girl in question, he argued, was not "unclothed" because she was wearing a sheer top, and so therefore Graziano's conviction needs to be overturned, because the law is as clear as her top - which the court said let the viewer see at least one of her breasts "in anatomical detail."

Not so fast, the appeals justices said in their ruling today - which stems from a 2013 incident in which Graziano brought his computer to a local shop for help in breaking a payment-extorting virus that had locked it and a technician noticed two photos of an apparently underage girl in varying stages of undress and contacted police.

The justices start their deliberations with a 2002 edition of Webster's Third New International Dictionary, since the law in question does not specifically enumerate what "unclothed" means.

As the parties agree, "unclothed" means "not clothed," and "clothe," in turn, is commonly defined to mean "put garments on" and "cover with clothes." ... In essence, the defendant argues that if a child is wearing an article of clothing over a body part, then that body part is "covered" and hence "clothed" by definition. In the alternative, the defendant argues that even if the word "unclothed" is considered ambiguous, then the statute still must be interpreted in his favor under the rule of lenity. See Commonwealth v. Williamson, 462 Mass. 676, 679 (2012).

That sounds like the justices are going to come down on the defense side here. But, they continued, context is important as well, and after looking a word up in the dictionary, one has to look at the entire section of state law in which it's used, not just a single clause.

The terms "covered" and "clothed" could be considered ambiguous if they were viewed in isolation. However, "meaning and ambiguity are creatures of context." Downer & Co., LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786, 792 (2010). It is axiomatic that we are to "look to the language of the entire statute, not just [textual snippets], and attempt to interpret all of its terms 'harmoniously to effectuate the intent of the Legislature.'"

And the entirety of the particular section that uses "unclothed" is to protect children from sexual exploitation, the court continued.

The obvious intent of § 29C (vii) in particular is to protect children from having their naked private body parts exhibited in a lewd manner. In this context, we conclude that the Legislature intended that whether a relevant body part should be considered "covered" and hence "clothed" should turn on the extent to which that body part can be seen. This reading fulfills the obvious legislative intent while still being fully consistent with one of the ordinary meanings of "cover": "to protect or conceal (one's body or a part of it) from view typically with an article of clothing or bedding." Webster's Third New International Dictionary 524 (2002). Cf. Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 239-240 (2014) (affirming conviction for open and gross lewdness based on defendant's wearing "see-through" compression shorts that exposed his genitals and buttocks to view).

By contrast, under the defendant's contrary interpretation, an image that plainly exhibited one of the listed body parts of a child in a lewd manner would not be actionable solely because a whisper of fabric was positioned between the child and the viewer, even though the exploitation of the child would be the same. In our view, such a reading is "so at odds with the 'central purpose' and over-all structure of the statute that we cannot ascribe it to the Legislature." Commonwealth v. Cole C., 92 Mass. App. Ct. 653, 661 (2018), quoting Reade, 472 Mass. at 584. ...

For these reasons, we hold that where a child is depicted wearing clothing that allows a viewer to see the listed body parts to an extent comparable to the child's being naked, a fact finder may deem the body parts "unclothed." In the case before us, a rational fact finder readily could find beyond a reasonable doubt that at least one of the images met that standard, and the defendant's challenge to the sufficiency of the evidence therefore fails.

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