Photographing an Unsuspecting Nude Person Must Be Intentional and Disseminating Must Be to a Third Party: Commonwealth v. Goncalves

By Attorney Joe Serpa | Georgetown University Law Center

The defendant in Commonwealth v. Goncalves installed a camera high on the living room wall of his basement apartment in Edgartown and aimed the camera at the couch. In December 2021, the defendant and the victim, whom the defendant had met through an online application, had a sexual encounter that began on the couch. The defendant used the camera to photograph the nude victim without the victim’s knowledge.

Two weeks later, the defendant sent the victim a photograph from the encounter. The evidence at trial showed that the defendant sent the photograph only to the victim.

A jury in the Edgartown District Court found the defendant guilty of photographing an unsuspecting nude person under G.L. c. 272, § 105(b), and of disseminating the photograph under G.L. c. 272, § 105(c). On October 6, 2026, the Supreme Judicial Court (SJC) decided the defendant’s appeal under two rules. Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026).

The first rule governs the photographing. The Commonwealth must prove that the defendant photographed the victim intentionally and intended to keep the photographing secret. The SJC held that the evidence was sufficient to prove an intent to record in secret and upheld the conviction for photographing an unsuspecting nude person.

The second rule governs dissemination. The Commonwealth must prove that the defendant disseminated the image to at least one third party, meaning a person other than the person shown in the image. Sending a secretly recorded image only to the person shown in the image is not dissemination under § 105(c). The SJC reversed the dissemination conviction and directed the entry of a judgment of not guilty, because the defendant sent the photograph only to the victim.

This post explains each rule, the evidence at trial, and how defense counsel uses the decision in a pending case.

Secretly Photographing a Nude Person and Disseminating the Image Under G.L. c. 272, § 105

Section 105(b) punishes a person who willfully photographs, videotapes, or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide the photographing, videotaping, or surveillance. The Commonwealth must also prove that the person photographed would reasonably expect privacy from being photographed in the place and circumstances where the photographing occurred. The photographing must have occurred without the knowledge and consent of the person photographed.

A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction, a fine of up to $5,000, or both. The § 105(b) offense is a misdemeanor.

Section 105(c) punishes a person who willfully disseminates the visual image of another person, knowing that the image was obtained in violation of § 105(b), without the consent of the person shown in the image. Section 105 does not define the word “disseminates.”

A judge may sentence a person convicted under § 105(c) to up to two and one half years in a house of correction or up to five years in state prison. The judge may also impose a fine of up to $10,000, instead of or in addition to imprisonment. Dissemination under § 105(c) is a felony under G.L. c. 274, § 1, because § 105(c) provides for a state prison sentence.

Section 105 applies to video and electronic surveillance as well as to photographs. Section 105(a) defines “electronically surveils” as viewing, obtaining, or recording a person’s visual image with a camera, cell phone, computer, television, or other electronic device. The SJC used the words “photograph” and “photographing” in Goncalves because the witnesses and the parties used those words.

A hidden camera can also record sound. The police can apply for a complaint under the Massachusetts wiretap statute, G.L. c. 272, § 99, against a person who secretly records a conversation without the prior authority of every party to the conversation.

The Evidence at Trial

The defendant’s profile on the online application stated, “I will never make videos.” On December 6, 2021, the victim came to the defendant’s apartment. The sexual encounter began on the living room couch, where the victim sat nude, facing the camera. The victim did not notice the camera or any other sign of recording. After about ten minutes, the defendant and the victim moved to the defendant’s bedroom.

The defendant had mounted the camera high on the living room wall, near a dark-colored pipe and a dark gap between the ceiling and the wall. The defendant had pointed the camera directly at the couch.

The defendant and the victim next communicated two weeks later, when the victim sent the defendant a text message. The defendant responded with a photograph from the December 6 encounter, showing the defendant and the victim, both nude, in the living room. The victim wrote back and questioned the defendant about “secretly recording guys that come over.” The victim also raised the possibility of reporting the defendant to the Edgartown police. The defendant replied, “Block u[.] Bye.”

Police later searched the apartment and saw the camera installed in the living room. The police also found the empty box in which the camera was sold, inside a dresser drawer in the defendant’s bedroom. The defendant had posted no signs in the apartment telling visitors about recording.

The police found no photograph or other recording of the victim in the defendant’s possession. The camera contained no memory card at the time of the search. The police could not open the defendant’s cell phone.

The defendant later told a police officer, “So I make porno,” and laughed.

A jury heard the case in the Edgartown District Court in March 2024. The defendant presented no evidence. The jury found the defendant guilty on both charges. The judge sentenced the defendant on each conviction to ninety days in a house of correction, with ten days to serve and the balance suspended for one year. The judge ordered the two sentences served at the same time and also imposed one year of administrative probation.

The SJC granted the defendant’s application for direct appellate review. The SJC therefore decided the appeal without a decision from the Appeals Court.

The Intent to Record in Secret Under § 105(b)

The SJC held that the evidence was sufficient for the jury to find that the defendant willfully photographed the victim in the nude and that the defendant intended to keep the photographing secret. The parties agreed that “willfully” means “intentional[ly] and by design[,] in contrast to that which is thoughtless or accidental.”

The defendant argued that the photographing was accidental. The SJC rejected the defendant’s argument that the evidence supported a finding of accident as strongly as a finding of willful photographing. The SJC pointed to five facts.

• The jury could infer from the empty camera box in the defendant’s dresser that the defendant installed the camera while living in the apartment.
• The defendant installed the camera high on the living room wall and pointed the camera directly at the couch where the sexual encounter began.
• The defendant showed that he knew he had photographed the encounter when he answered the victim’s text message with a photograph from the encounter.
• The defendant did not claim that the recording was accidental when the victim questioned him about “secretly recording guys that come over.” The defendant instead replied, “Block u[.] Bye.”
• The defendant told the police, while laughing, that he had made “porno.”

The SJC held that the jury could find that the defendant’s reply to the victim and the defendant’s statement to the police showed consciousness of guilt, meaning an awareness that he had done something wrong. The SJC described the statement to the police as an apparent attempt to minimize the defendant’s conduct.

The SJC also held that the evidence supported the jury’s finding that the defendant intended to keep the photographing secret. The jury could find that the defendant chose the camera’s location to make the camera less noticeable to visitors. The defendant never told the victim about the camera and never asked for the victim’s consent. Moreover, the jury could find that the defendant wrote “I will never make videos” in his profile to reassure prospective visitors.

The defendant argued that evidence of his failure to seek consent could not also prove his intent to hide the photographing, because lack of consent is a separate element of § 105(b). The SJC disagreed with the defendant. The SJC held that the defendant’s failure to tell the victim about the camera, considered together with the camera’s placement, tended to prove that the defendant intended to keep the photographing secret.

Dissemination to a Third Party Under § 105(c)

The SJC held that dissemination under § 105(c) requires dispersing the image to at least one third party. In the SJC’s words, “sending a photograph of a victim solely to the victim himself or herself does not amount to ‘disseminat[ing]’ the photograph.” The Commonwealth offered no evidence that the defendant sent the photograph to anyone other than the victim. The SJC therefore held that the Commonwealth did not prove the dissemination charge.

The SJC began with the ordinary meaning of the word “disseminates.” Dictionary definitions describe dissemination as spreading, dispersing, or scattering widely. From those definitions, the SJC concluded that the plain meaning of “disseminate” involves “spreading or dispersing material.”

The SJC also relied on the penalties in § 105. The Legislature set the penalties for dissemination under § 105(c) at twice the penalties for photographing under § 105(b). The SJC read the higher penalty as the Legislature’s recognition that spreading a secretly recorded image to other people causes a distinct and greater harm than creating the image.

The SJC identified the harm of dissemination as the exposure of the image to people such as friends, family members, employers, co-workers, teachers, classmates, and strangers on the internet. Sending the image only to the person shown in the image, the SJC wrote, “while no doubt in many cases a source of intense distress to the victim, does not entail these same harms.”

The Commonwealth argued that a victim who receives a secretly recorded image may treat the message as a veiled threat that the sender will send the image to others. The SJC responded that sending the image only to the victim does not cause the same harms as sending the image to third parties.

The Commonwealth also asked the SJC to apply the definition of “disseminate” in G.L. c. 272, § 31. Section 31 defines “disseminate” as to “import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display.” The SJC declined the Commonwealth’s request. The Legislature had expressly limited the § 31 definition to listed sections of chapter 272. Section 105(c) is not one of the listed sections.

Under the rule of lenity, a court resolves an ambiguity in a criminal statute in the defendant’s favor. The SJC held that any ambiguity about whether sending an image only to the victim is dissemination had to be resolved in the defendant’s favor.

The SJC described the case in terms of “sending” the photograph because the defendant sent the photograph to the victim. The SJC noted that a person can also disseminate an image by other methods.

The Jury Instructions on Intent and the SJC’s Model Instruction

The defendant argued for the first time on appeal that the judge’s instructions to the jury were flawed. According to the defendant, the instructions allowed the jury to convict him upon finding an intent to take photographs in general, without finding an intent to photograph the victim in the nude. The defendant’s trial counsel had not objected to the instructions. The SJC therefore applied the standard for errors that counsel did not raise at trial, asking whether any error created a substantial risk of a miscarriage of justice.

The SJC found no error in the instructions. The judge told the jury that the defendant’s act had to be intentional, “and not accidental or due to some inadvertence or inattentiveness,” and that the victim had to be nude or partially nude at the time. The defendant did not dispute that he was in the room with the nude victim at the time of the photograph. The SJC held that a reasonable jury would therefore have understood that a conviction required a finding that the defendant willfully photographed the victim while the victim was nude.

The SJC also set out a model jury instruction for the § 105(b) offense in an appendix to the opinion, for use in future cases. Defense counsel in a § 105(b) trial should compare the judge’s proposed instructions with the SJC’s model instruction and object at trial to any instruction that misstates an element. Counsel who objects at trial preserves the claim of instructional error for appeal.

Defending a § 105 Charge After Goncalves

The SJC upheld the § 105(b) conviction on circumstantial evidence of an intent to record in secret. The SJC relied on where the defendant placed the camera, where the defendant aimed the camera, what the defendant told prospective visitors in his profile, and how the defendant responded when the victim confronted him. Defense counsel in a § 105(b) case examines the same kinds of facts.

The facts to examine include who installed the camera, for what purpose, and what the camera was set to record. The facts also include whether visitors could see the camera or were told about the camera, and whether the person photographed would reasonably expect privacy from being photographed in the place where the photographing occurred.

Under Goncalves, the Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Defense counsel can raise the third-party requirement at three stages of a § 105(c) case.

• At a clerk-magistrate hearing, counsel can argue that a § 105(c) application describing a message only to the person shown in the image does not establish probable cause of dissemination.
• Counsel can file a motion to dismiss a § 105(c) count when the complaint application describes a message only to the person shown in the image.
• At trial, counsel can move for a required finding of not guilty under Mass. R. Crim. P. 25 when the Commonwealth offers no evidence that anyone other than the person shown in the image received the image.

In a dissemination case, defense counsel examines who received the image, when, and by what method. The evidence of who received the image usually includes the messages themselves, phone extraction reports, records from the messaging platform or social media account, and the testimony of anyone who claims to have received the image.

Secretly Recorded Images Sent On or After September 18, 2024

The defendant in Goncalves sent the photograph in December 2021. An Act to Prevent Abuse and Exploitation took effect on September 18, 2024. In that Act, the Legislature added an offense to the criminal harassment statute, G.L. c. 265, § 43A(b), for the nonconsensual distribution of intimate images.

Section 43A(b) punishes the knowing distribution of visual material depicting another person who is nude, partially nude, or engaged in sexual conduct. The Commonwealth must prove that the distribution caused the person depicted physical or economic injury or substantial emotional distress. The Commonwealth must also prove one of two mental states.

• An intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress.
• Reckless disregard of the likelihood that the person depicted will suffer harm, harassment, intimidation, threat, coercion, or substantial emotional distress, of the person’s lack of consent to the distribution, and of the person’s reasonable expectation that the material would remain private.

Section 43A(b) contains a different word, “distributes.” Section 43A defines “distribute” as to “give, sell, transfer, disseminate, publish, upload, circulate, broadcast or engage in any other form of transmission, electronic or otherwise.” In Goncalves, the SJC interpreted the word “disseminates” in § 105(c), for conduct that occurred before § 43A(b) took effect. The SJC did not decide whether sending an intimate image only to the person shown in the image is distribution under § 43A.

For a secretly recorded image sent on or after September 18, 2024, the police can apply for a complaint under § 43A(b) as well as under § 105.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. The telephone number for Serpa Law Office is 617.936.0201.

Key Takeaways

• The Commonwealth must prove that a person charged with photographing an unsuspecting nude person under G.L. c. 272, § 105(b) photographed the person intentionally and intended to keep the photographing secret. In Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026), the SJC held that the jury could find an intent to record in secret from the camera’s placement and aim, the defendant’s silence about the camera, and the defendant’s reply when the victim confronted him.
• The Commonwealth must prove that a person charged with dissemination under § 105(c) disseminated the image to at least one third party. Sending a secretly recorded image only to the person shown in the image is not dissemination. The SJC set aside the dissemination verdict in Goncalves and directed the entry of a judgment of not guilty.
• Dissemination under § 105(c) is a felony. A judge may sentence a person convicted of dissemination to up to five years in state prison. A judge may sentence a person convicted under § 105(b) to up to two and one half years in a house of correction.
• The SJC set out a model jury instruction for the § 105(b) offense in an appendix to the opinion.
• In Goncalves, the SJC interpreted only § 105(c). Since September 18, 2024, G.L. c. 265, § 43A(b) has also punished the nonconsensual distribution of intimate images. Section 43A defines “distribute” to include “give” and “transfer.”

Related Serpa Law Office resources

• Massachusetts Revenge Porn and Nonconsensual Intimate Image Law
• Massachusetts Revenge Porn and Nonconsensual Intimate Image FAQ
• Massachusetts Deepfake and AI-Generated Intimate Image Defense
• Secret Recordings and the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99)
• Massachusetts Clerk-Magistrate Hearing Lawyer
• How Criminal Cases Get Dismissed in the Massachusetts District and Municipal Courts
• Rule 25: The Motion for a Required Finding of Not Guilty in Massachusetts
• Felonies and Misdemeanors in Massachusetts