Boston’s Criminal
Defense Lawyer
Defense Lawyer
Massachusetts Deepfake and AI-Generated Intimate Image Defense
A Massachusetts charge involving an AI-generated or altered intimate image presents several distinct questions: whether the image falsely appears authentic, whether it depicts or identifies a particular person, who created it, and who distributed it. Readers search for these images as deepfakes, fake nudes, or AI nudes. The statute defines the same material as visual material produced by digitization, created or altered so that it falsely appears to a reasonable person to be an authentic representation of the person depicted. G.L. c. 265, § 43A. The Commonwealth must prove the statutory elements and connect the image and its distribution to the accused through admissible evidence.
This page addresses those questions. The general law governing nonconsensual intimate image distribution in Massachusetts, including the elements, the penalties, and the defenses that apply to every case under the statute, is on Massachusetts revenge porn and nonconsensual intimate image law and the revenge porn and NCII FAQs.
Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201.
Which Statute Applies
M.G.L. c. 265, § 43A is the statute that covers generated and altered images. Chapter 118 of the Acts of 2024 amended the criminal harassment statute to cover the knowing distribution of visual material “including visual material produced by digitization,” and it defines digitization as the creation or alteration of visual material, including through the use of computer-generated images, “in a manner that would falsely appear to a reasonable person to be an authentic representation of the person depicted.”
The Commonwealth must prove that the image would falsely appear to a reasonable person to be an authentic representation. An image that would not appear to a reasonable person to be an authentic representation of the complainant presents a question under that element.
M.G.L. c. 272, § 105 is a different statute and it does not cover a generated image. Section 105 punishes willfully photographing, videotaping, or electronically surveilling a person who is nude or partially nude, with the intent to secretly conduct or hide the activity, where the person had a reasonable expectation of privacy. It defines electronically surveils as viewing, obtaining, or recording “a person’s visual image.” The dissemination provision in subsection (c) applies to a person who distributes an image “with knowledge that such visual image was unlawfully obtained in violation of” that recording provision.
If no one secretly recorded the complainant because the accused allegedly generated the image or created it from publicly available material, the Commonwealth may be unable to prove the recording element of § 105. If the evidence includes an actual secret recording, § 105 presents a separate charge that must be evaluated under its own elements.
Section 43A(b)(2) applies to whoever knowingly distributes visual material, including visual material produced by digitization, depicting another person who is identifiable in the material or identified by the distributing person, and who is nude, partially nude, or engaged in sexual conduct, where the distribution causes physical or economic injury or substantial emotional distress, and where the distribution is made either with intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress, or with reckless disregard for the likelihood of such harm, for the depicted person’s lack of consent to distribution, and for that person’s reasonable expectation that the material would remain private.
The statute also provides that consent to the creation of visual material does not constitute consent to its distribution. A first offense under this provision is punishable by imprisonment in a house of correction for not more than two and one half years, a fine of not more than $10,000, or both.
Whether the Image Depicts an Identifiable Person
Section 43A requires that the person be identifiable in the visual material or identified by the distributing person. Both routes matter in a synthetic media case.
An image that combines features, or that renders a face that resembles more than one person, may not identify the complainant within the meaning of the statute. If the person who allegedly distributed the image also used accompanying text to identify the complainant, the Commonwealth may rely on the statute’s second identification route even if the image alone does not identify that person. The Commonwealth must still prove every other element.
The practical questions are what the image shows, what accompanied it, and what a viewer who knows the complainant would take it to be.
Who Sent It
The Commonwealth must prove distribution through admissible evidence rather than through an account name or visual impression alone. Creation is not an element of the offense. Section 43A(b)(2) applies to whoever “knowingly distributes visual material, including visual material produced by digitization,” and a person who generates an image and keeps it has not committed that offense.
Creation. Depending on the software and its settings, relevant evidence may include source files, retained prompts or inputs, editing history, application logs, and creation or modification timestamps.
Distribution. The Commonwealth must connect the sending account and the act of distribution to the accused. Provider records, device records, and other account-attribution evidence may bear on that question. Creation and distribution are separate acts, and only distribution is charged under this provision. That distinction runs in both directions. A person who generated an image but never sent it has not violated § 43A(b)(2). A person who did not generate the image at all, but forwarded one that arrived by group chat or AirDrop, has distributed it, and the remaining elements are where that case is contested. Ownership of an account or device, without more, does not establish who distributed the image.
Authentication and Attribution
The governing rule is Commonwealth v. Purdy, 459 Mass. 442 (2011). Evidence that a communication came from an account bearing a person’s name “is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.” There must be “confirming circumstances” sufficient for a reasonable jury to find by a preponderance of the evidence that the accused authored it.
Purdy also explains that the defendant’s uncorroborated testimony that others used the computer went to the weight of the evidence rather than its admissibility. Corroborating evidence may include shared access credentials, contemporaneous access by another person, provider login records, location evidence, and device records.
Authentication of the exhibit is separate from attribution and from the truth of what the image appears to depict. Massachusetts Guide to Evidence § 901 requires evidence sufficient to support a finding that the exhibit is what its proponent claims. In a prosecution involving an allegedly synthetic image, authentication may establish that the exhibit is the file that was distributed, which is a different question from who generated it. It does not by itself prove that the image depicts a real event, that the accused created it, or that the accused distributed it.
Forensic Opinions and Their Limits
Both sides may seek to offer expert opinion about whether an image was generated or altered. The standard is Commonwealth v. Lanigan, 419 Mass. 15 (1994), which adopted the reasoning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Lanigan the ultimate test is “the reliability of the theory or process underlying the expert’s testimony.” General acceptance in the relevant scientific community remains a relevant factor, and a proponent may also establish reliability by other means. The judge acts as gatekeeper and assesses whether the methodology is scientifically valid and whether it can properly be applied to the facts in issue.
A court must determine whether the proponent validated the particular method for the task performed in the case. Relevant questions include what the tool was trained or validated on, its error rate, whether another qualified examiner can reproduce the result, whether the examiner followed a documented protocol, and whether the opinion expresses an identification or a probability.
The court should assess the particular tool, the examiner’s method, the source image, the error rate, and the reproducibility of the result rather than assume that detection software is either reliable or unreliable.
Metadata and What It Does Not Establish
Metadata is useful and it is limited. Creation and modification timestamps, device identifiers, software fields, and geolocation can support or undercut an account of who made a file and when.
A user or platform may remove or alter metadata before the defense obtains the file. The absence of metadata does not establish that the image is authentic or synthetic. Counsel should compare any available metadata with provider logs, device-extraction records, and the file as it existed at each documented stage.
Related material: digital evidence in Massachusetts criminal cases and the text message and phone evidence FAQs.
Records the Defense Should Seek
- The complete forensic extraction of a relevant seized device, rather than a selected excerpt.
- The source and intermediate files, where they exist, and the file as originally distributed.
- Application and tool logs, including prompt or input history where the tool retains one.
- Platform and provider records: account registration, login records with times and addresses, upload records, and any preserved content.
- The examiner’s report, notes, software and version, protocol, and validation materials.
- Any report generated by a detection tool, with the underlying output rather than a conclusion.
- Records from the complainant’s accounts and posts when the Commonwealth alleges that material from them was the source for the image.
How police obtained the devices and accounts is its own body of law: see phone, computer, and digital device searches in Massachusetts.
How These Cases Begin
Some cases begin with an arrest followed by arraignment. Others begin with an application for a criminal complaint. Under M.G.L. c. 218, § 35A, a court ordinarily conducts a clerk-magistrate hearing before issuing process on a misdemeanor complaint application when police did not arrest the accused, subject to the statute’s exceptions.
If the clerk-magistrate denies the application, no complaint issues, no arraignment occurs, and the application produces no CORI entry. A police report can still exist, and an arrest and booking record may exist if police made an arrest in connection with the incident.
A denial is not technically a final judgment, but it ordinarily ends the matter in practice. Renewed applications are rare and, in Attorney Serpa’s experience, arise primarily in matters involving repeat offenders. In Cabrera v. Commonwealth, 496 Mass. 179 (2025), the Supreme Judicial Court held that collateral estoppel did not bar a second application filed two and a half years after a denial because the denial was not a final judgment. The Court also held that the delay did not violate due process without a showing of severe prejudice to the defense.
See Massachusetts clerk-magistrate hearings, the clerk-magistrate hearing FAQs, and arraignment.
Students
A student accused of creating or sharing a synthetic image may face a university disciplinary proceeding while the criminal case is pending. Schools set their own procedures, standards, and schedules, which vary by institution and by the type of allegation.
Counsel should read the school’s policy before the student submits a statement. The Commonwealth may later obtain or seek to use a statement made during the disciplinary proceeding. See student criminal defense.
Chapter 118 also created M.G.L. c. 272, § 29D, and the two provisions should not be confused. Section 29D is a juvenile provision that applies to a minor whose conduct violates § 29B or § 29C, the child pornography provisions. The Juvenile Court has exclusive jurisdiction of proceedings under it, § 29D(e) provides affirmative defenses including where the visual material portrays no person other than the juvenile, a juvenile adjudicated under it is not required to register with the sex offender registry board, and the adjudication is eligible for expungement.
The diversion that accompanies those charges comes from a different statute. Under M.G.L. c. 119, § 54B, where a child is alleged to be a delinquent child by reason of a violation of § 29B, § 29C, or § 29D of c. 272, the court shall, prior to arraignment, indefinitely stay arraignment and direct the child to enter and complete the educational diversion program developed under M.G.L. c. 12, § 36, unless the district attorney objects in writing, in which case the court determines whether to direct the child into the program. Where arraignment has already occurred, the court places the child on pretrial probation under M.G.L. c. 276, § 87 with completion of the program as a condition.
Section 54B does not list § 43A. A minor charged under § 43A(b)(2) with distributing a digitized image is therefore outside that mandatory stay, and counsel should establish exactly what is charged before assuming any of it applies. Whether digitized material can violate § 29B or § 29C at all is a further question, because those sections concern visual material of an actual child.
Licensed Professionals
There is no single rule that makes an arraignment a reportable event for licensed professionals. Each authority sets its own trigger, its own form, and its own deadline.
For Massachusetts attorneys, the duty arises on conviction. S.J.C. Rule 4:01, § 12(8) requires notice to bar counsel within ten days of a conviction, and the rule defines conviction to include an admission to sufficient facts. FINRA asks about certain criminal charges when they are filed. Other boards ask at renewal, and some require notice of a pending charge on their own schedules.
A licensing authority’s power to investigate is also separate from a licensee’s duty to report. A board may open an inquiry on information it receives without any report from the licensee, and the existence of that power does not create a self-reporting duty where the rule does not impose one.
What a particular professional must report, and when, comes from that profession’s own rule. See criminal defense for licensed professionals in Massachusetts.
Noncitizens
A noncitizen should have immigration counsel review any proposed disposition before accepting it. Federal immigration consequences may depend on the statutory elements, the disposition, the sentence, the person’s immigration status, and the person’s prior record. The Massachusetts charge label does not answer the question. See immigration consequences of Massachusetts criminal charges.
The Record
Once the case proceeds to arraignment, the charge appears in CORI regardless of the later disposition. What the entry shows and who can access it turn on the disposition and any sealing order. Section 100C requires the court to seal a not-guilty finding unless the defendant objects. A dismissal requires a petition, and the judge may seal it when substantial justice would best be served. Section 100C imposes no waiting period for either procedure. See criminal records and outcomes.
Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.
How This Page Differs From the Revenge Porn Page
This page addresses fabricated and digitally altered sexual imagery, where the disputed questions are whether the material is authentic, who created or sent it, and what forensic evidence can establish. The general page on Massachusetts revenge porn and nonconsensual intimate images covers the distribution of authentic images, including images created with consent and then distributed without it, together with the elements, defenses, and penalties under section 43A.
Related Page
We Accept the Following Payment Solutions
