AI Deepfake and Explicit Image Charges Against Massachusetts Students

A Massachusetts student accused of creating or sharing an AI-generated explicit image of a classmate faces two proceedings at once. The first is a criminal case, most often a delinquency complaint in the Juvenile Court under G. L. c. 265, § 43A, as amended by St. 2024, c. 118, or under G. L. c. 272, § 29D. The second is a school discipline case under G. L. c. 71. The two proceedings follow different rules, run on different schedules, and feed each other, and a family that treats either one casually can lose both. This page explains the statutes, the diversion pathway the Legislature built for minors, the April 2026 guidance from the Department of Elementary and Secondary Education, and the way the defense of these cases is conducted.

The Criminal Statutes That Address a Deepfake

St. 2024, c. 118, “An Act to prevent abuse and exploitation,” added the distribution of explicit images to the criminal harassment statute. G. L. c. 265, § 43A (b) now punishes the distribution of visual material depicting another identifiable person who is nude, partially nude, or engaged in sexual conduct, where the distribution causes injury or distress and is made with the intent to harm the person depicted or with reckless disregard for the person’s lack of consent. The statute expressly addresses digitized and computer-generated depictions, so an AI-generated image is treated the same as a photograph. A first offense is punished by up to two and one half years in the house of correction, a fine of up to $10,000, or both. A second or subsequent offense falls under § 43A (c) and is punished by up to ten years in state prison and a fine of up to $15,000. The adult offense is treated in full on the firm’s deepfake and AI-generated intimate image defense page and on the Massachusetts revenge porn and nonconsensual intimate image law page. The related harassment offenses are treated on the criminal harassment defense page.

Where the person depicted is under 18, the exposure is more serious. Dissemination and possession of sexually explicit material depicting a minor are felonies under G. L. c. 272, §§ 29B and 29C, and they carry state prison exposure. Before 2024, a teenager who shared an explicit image of another teenager could be charged under those same statutes. St. 2024, c. 118 created G. L. c. 272, § 29D, a separate offense for a minor who possesses or distributes such material, and it directed that these cases be handled in the Juvenile Court. Section 29D (e) provides affirmative defenses, including where the material depicts only the juvenile who possesses it, and where the material depicts a person 16 or older, was created and provided consensually, and was not distributed beyond the original sender. A juvenile adjudicated under § 29D is not required to register as a sex offender and is eligible for expungement.

Lesser conduct in the same episode is often charged separately. Repeated unwanted messages may be charged as criminal harassment under § 43A (a), and harassing electronic communications may be charged as a misdemeanor under G. L. c. 269, § 14A. The family of the student depicted may also apply for a harassment prevention order under the process described on the 258E harassment prevention order page, and violating such an order is a separate crime, treated at criminal violation of a 258E order.

The Diversion Pathway for a Charged Minor

The Legislature paired the new offense with a mandatory off-ramp. Under G. L. c. 119, § 54B, when a child is charged under G. L. c. 272, §§ 29B, 29C, or 29D for conduct involving explicit images, the court shall indefinitely stay the arraignment and direct the child to enter and complete an educational diversion program, unless the district attorney objects and the court sustains the objection. The program is developed and administered by the Attorney General under G. L. c. 12, § 36, in consultation with the Office of the Child Advocate, the Department of Elementary and Secondary Education, and the Department of Youth Services. A stayed arraignment matters: the case does not proceed against the child while the program is completed, and the pathway is designed to keep these cases out of the juvenile justice system. Statements made in connection with a diversion program receive protection from later use under Mass. G. Evid. § 529.

Two further doctrines protect younger and first-time accused students. A first offense of a misdemeanor punishable by no more than six months cannot proceed as a delinquency case at all, and the Juvenile Court holds a hearing to determine first-offense status. Commonwealth v. Wallace W., 482 Mass. 789 (2019). And where a juvenile complaint issues on a summons rather than an arrest, the family has the opportunity to contest the complaint before it issues, in the same way an adult contests a complaint at the clerk-magistrate hearing described elsewhere on this site. These hearings are the earliest and often the best opportunity to end the case.

The April 2026 DESE Guidance

On April 15, 2026, the Department of Elementary and Secondary Education issued guidance to Massachusetts schools on AI-generated deepfake images and videos. The guidance directs schools to investigate reports promptly, to stop the conduct, to protect affected students and staff, and to educate students on the harm this abuse causes. It reminds districts that creating an AI-generated nude image of a minor is a criminal offense, and it directs schools to investigate consistent with their obligations under the state anti-bullying and anti-discrimination laws and under federal Title IX requirements. It also encourages districts to work closely with legal counsel and community partners. For an accused student, the practical meaning is direct: the school will open its own investigation quickly, the school’s findings will not stay inside the school, and a criminal referral is expected rather than exceptional.

School Discipline Under Chapter 71

The school case follows its own statutes. Under G. L. c. 71, § 37O, every district must maintain a bullying prevention and intervention plan, and bullying includes expression by electronic means. When a report is made, the principal investigates, notifies the parents of the students involved, and refers the matter to law enforcement where criminal charges may be pursued. The DESE guidance overlays this framework for deepfake cases.

The exclusion statutes then divide by the seriousness of the criminal charge. Under G. L. c. 71, § 37H½, the issuance of a felony complaint against a student, standing alone, permits the principal to suspend the student for as long as the criminal case is pending, upon a written determination that the student’s continued presence would have a substantial detrimental effect on the general welfare of the school, and a felony conviction or adjudication permits expulsion on the same standard. The student has the right to appeal to the superintendent. Charges under G. L. c. 272, §§ 29B or 29C are felonies that trigger this section. Discipline for conduct outside §§ 37H and 37H½ proceeds under G. L. c. 71, § 37H¾, which requires notice and a hearing before the principal, provides an appeal to the superintendent, caps exclusion at 90 school days, and preserves the student’s right to make academic progress during any period of removal.

The Interaction of the Two Cases

The school case and the court case are formally separate, and the separation is where the danger lives for an unrepresented family. A student has no right to counsel in the principal’s office, and statements made to school administrators are not suppressed the way an unwarned stationhouse statement may be. What a student writes in an apology letter, says in a discipline meeting, or posts in a group chat routinely becomes the core of the delinquency case, because § 37O and the DESE guidance direct schools to refer these matters to the police. A student who is not a citizen carries additional exposure from any juvenile or criminal disposition, described on the immigration consequences page. The defense therefore coordinates the two proceedings from the first day: it prepares the student and the family for every school meeting, it times the school hearing against the criminal calendar, and it works to resolve the court case through the § 54B diversion pathway before the school case hardens into a long exclusion.

The Defense of These Cases

The defense proceeds on four fronts. The first is attribution. An account name on a screenshot is not proof of authorship, and the Commonwealth must connect the image to the accused student’s device or account. The forensic issues, including metadata, extraction reports, and the limits of what a screenshot proves, are the same issues treated on the Massachusetts phone, computer, and digital searches page. The second is the statutory elements. Section 43A (b) requires an identifiable person, a qualifying depiction, distribution, resulting injury or distress, and intent to harm or reckless disregard, and each element is a place where the Commonwealth’s proof can fail. The third is the statutory off-ramps: the § 29D (e) affirmative defenses and the § 54B diversion mandate, which the defense invokes early and in writing. The fourth is the school hearing itself. A § 37H¾ hearing is a real hearing, with notice, evidence, and an appeal, and a prepared presentation there protects both the student’s enrollment and the criminal case. Where the case ends in a dismissal or a stayed arraignment, the defense finishes the work by clearing the record under the standards described on the sealing and expungement page.

Who Attorney Serpa Represents

Attorney Serpa represents middle school, high school, and college students across Greater Boston who are accused of creating or sharing deepfake or explicit images, of cyberbullying, and of the companion charges that follow a school investigation, along with their parents. He represents students at every stage: before any charge, when the school first calls; at the clerk-magistrate hearing or first-offense hearing; through diversion under § 54B; and at trial where trial is necessary. If your child is under investigation at school or has been charged, contact Attorney Serpa at 617.936.0201 for a confidential consultation.

Massachusetts Courts Where Attorney Serpa Tries These Cases

These cases begin in the Juvenile Court divisions serving Greater Boston, and the companion adult cases are heard in the Boston Municipal Court and in the district courts across Eastern Massachusetts. Attorney Serpa has tried cases in these buildings for thirty years.

Related Serpa Law Office resources

The recurring questions are answered in the student AI deepfake and explicit image FAQs and in the broader Massachusetts student criminal defense FAQs. The harassment statute that houses the image-distribution offense is treated on the criminal harassment defense page, and the civil orders that often accompany these accusations are covered on the 258E harassment prevention order page. A case that begins with a summons is contested first at a clerk-magistrate hearing. The digital attribution issues are examined on the phone, computer, and digital searches page and in the firm’s post on Commonwealth v. Watson and postconviction digital forensic analysis. The April 2026 guidance itself is examined in the firm’s post AI Deepfakes in Massachusetts Schools. College and university students carry the additional exposure treated on the college and university student criminal defense page, and the distinction between the felony and misdemeanor levels of these offenses is explained on the felonies versus misdemeanors page.