Mass. high court says obscene video chat man had with 10-year-old boy was illegal

The state’s highest court says a state child pornography law banned an obscene video chat that a 34-year-old man had with a 10-year-old boy in cyberspace.

Jeffery Bundy was convicted of violating the state law that bars people from posing or exhibiting a child in a state of sexual conduct, specifically under the provision of the law that bans using children in “live performances.” He had encouraged the boy to mutually masturbate with him over the Web.

His defense argued, among other things, that there was no “performance” because the act did not take place “before one or more persons.”

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The Supreme Judicial Court, in a unanimous ruling by Chief Justice Roderick Ireland, said the law did not require that an audience be physically present.

“We add that a ‘performance’ does not expressly or implicitly require the physical presence of ‘one or more persons.’ ... The Legislature’s interest in protecting minors from sexual exploitation should not turn on the medium used (or not used in the case of actual presence). To hold otherwise would allow persons who sexually exploit children to evade prosecution so long as they do so with the use of technology,” the court said.

“We cannot interpet statutory language in a vacuum, ignoring the Legislature’s purpose in enacting the statute,” the court said.

Bundy was indicted in December 2008 and convicted in November 2010 in Bristol Superior Court.