SJC: Online messages can't be used to convict sexual predators

A man who attempted to lure an undercover agent posing as a 13-year-old girl into sexual relations had his convictions thrown out Friday, disappointing prosecutors and prompting a state senator to say she’d push for updates to the obscenity laws.

The overturned convictions were the result of a Supreme Judicial Court opinion that laws barring the dissemination of obscene “matter” to minors do not extend to online conversations.

The court reviewed copies of internet conversations in which the Plymouth County man, Matt Zubiel, under the online moniker ILikeSports04, asked a deputy county sheriff, Melissa Marino, pretending to be 13-year-old Meliss Smith, if “[You] ever fool around with boys?" and attempting to schedule a time to meet her.

But the court said that while state statute prohibits handwritten or printed forms of the messages Zubiel was sending, existing law is too vague to convict him for sending the messages through an instant message or online chat.

The law’s prohibition on sending “visual representations” of obscenities to minors also fails to cover electronic means, the justices found, relying on definitions from Webster’s Third New International Dictionary to lay out their argument.

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

Sen. Cynthia Creem (D-Newton), co-chair of the Judiciary Committee, told the News Service she would file legislation to update the law to include modern technologies, calling the ruling a “terrible decision.”

“I think the result is that we need to do something,” she said, adding that “the world has changed” since the original statute was written. “This is something that’s crying for a fix, here. I think it’s a responsibility to look at it and see how quickly or what we can do,” she said.

Plymouth County District Attorney Tim Cruz said he was “disappointed” with the decision and said he hopes the Legislature takes prompt action to change the law.

“We need to make sure that the prosecutors have the tools that they need to make sure we can go after these online sexual predators that are hunting our children,” he said. “I think it’s time that we do change the law so that we can deal with the cyber issues out there.”

Cruz added that that because of the decision, Zubiel would now “have a clean record.”

Cruz said his office would continue to prosecute sexual predators who target victims online because there are other forms of evidence that may be used against them.

According to the court’s description of the case, Marino, the deputy sheriff, met Zubiel under the screen name “Melissa QT 1995” on Feb. 8, 2006.  Zubiel asked her for photographs, and she sent several of herself as a 13-year-old girl via email. He asked for a nude photograph, but Marino declined. He also repeatedly asked her whether she was a police officer.

Zubiel also frequently raised sexual topics, telling Marino, “I will show you the right way.” On Feb. 18, 2006, Zubiel drove to an apartment complex in Marshfield, where Marino had said she lived, and he was arrested. Zubiel acknowledged he sent the explicit messages and told police “it was a possibility that he would have sex with this girl.”

The Plymouth County Sheriff’s office declined to comment.

Zubiel’s lawyer, Thomas Foley, argued in a brief that the court must dismiss his client’s convictions, in part, because the Legislature had considered but declined to include computerized messages as part of the state’s obscenity statutes.

“The fact is that the legislature has considered Amending [the law] to include a specific reference to computers, but did not do so, clearly demonstrating that the statue as it stands is not intended to prohibit data transmitted between two computers,” Foley argued.