Instant messages are not illegal when used by sexual predators

The state’s high court said today that sexually explicit instant messages used by a Beverly man to arrange a sexual encounter with someone he thought was a 13-year-old girl are not illegal under current state law.

The Supreme Judicial Court reversed the conviction of Matt H. Zubiel, who in 2006 used IMs to chat not with a teenager but with Plymouth County Deputy Sheriff Melissa Marino, who was searching the Internet for child predators.

In 2007, Zubiel was convicted in Plymouth Superior Court of attempted dissemination of materials harmful to a minor and was sentenced to one year in jail.

In its unanimous ruling, the SJC said the text of the state law used against Zubiel contains a list of prohibited items ,— mostly visual materials like photographs ,— but does not include typewritten words.

The law also includes “handwritten materials” as a type of evidence that can be used to prosecute people like Zubiel. But, writing for the majority, Justice Francis X. Spina concluded the Legislature must rewrite the law to include 21st-century forms of communication before any more prosecutions take place.

“While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions ,AeP do not do so,” Spina wrote.

“If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of [the law] it is for the Legislature, not the court, to do so,” Spina wrote.

Spina also wrote, “We conclude that the online conversations in this case, as they were not written with pen or pencil, cannot be considered ‘handwritten’ materials.”

In a telephone interview, Plymouth County District Attorney Timothy J. Cruz, whose office prosecuted Zubiel, said “obviously we’re disappointed” by the ruling.

Cruz also serves as president of the Massachusetts District Attorneys Association. “If that’s [the SJC’s] position, there needs to be some legislative changes to the definition of what `matter’ is. Our kids are living in a different worlds than the one we did when we were growing up.

By Jonathan Saltzman and John R. Ellement, Globe Staff

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