CourtSupreme Judicial Court
DocketSJC 13880
ReleasedOctober 6, 2026
PanelBudd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ
Full opinionRead the full text of the decision
Question
Two questions. First, was there sufficient evidence that the defendant willfully photographed the victim in the nude with intent to hide that activity, or did the evidence equally support the defense theory that a home security camera accidentally captured the encounter? Second, does sending a photograph of a victim solely to the victim himself constitute “disseminat[ing]” the photograph within the meaning of G.L. c. 272, § 105(c)?
Rule
On voyeurism. General Laws c. 272, § 105(b), first par., makes it a crime to “willfully photograph[], videotape[] or electronically surveil[] another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent.” The Commonwealth must prove two intent elements: that the defendant (1) “willfully photograph[ed], videotape[d] or electronically surveil[led] another person who is nude or partially nude,” and (2) did so with the “intent to secretly conduct or hide” this activity. Commonwealth v. Robertson, 467 Mass. 371, 375-376 (2014). “Willfully” means “intentional[ly] and by design[,] in contrast to that which is thoughtless or accidental.” Commonwealth v. Pfeiffer, 482 Mass. 110, 116 (2019).
On dissemination. General Laws c. 272, § 105(c), first par., provides: “Whoever willfully disseminates the visual image of another person, with knowledge that such visual image was unlawfully obtained in violation of the first and second paragraphs of subsection (b) and without consent of the person so depicted, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or in the state prison for not more than 5 years or by a fine of not more than $10,000, or by both such fine and imprisonment.” The statute does not define “disseminate.” At the time of enactment in 2008, Black’s Law Dictionary defined “dissemination” as “[t]he act of spreading, diffusing, or dispersing; esp[ecially], the circulation of defamatory matter.” Black’s Law Dictionary 506 (8th ed. 2004). The graduated sentencing scheme reflects the Legislature’s “apparent belief that the greater the harm to the victim, the harsher the punishment should be for the offender.” United States v. Gordon, 875 F.3d 26, 33 (1st Cir. 2017).
Holding
On willfulness and intent to hide. Viewing the evidence in the light most favorable to the Commonwealth, a rational jury could find beyond a reasonable doubt that the defendant willfully photographed the victim in the nude with intent to hide the activity. The defendant installed the camera in a ceiling corner near a dark pipe and gap, pointed it at the couch, never notified the victim of its presence, and upon being contacted by the victim two weeks later, sent him the photograph and made no claim of accident when confronted with an accusation of “secretly recording guys.” The defendant’s statement to police that he made “porno,” his profile claim that “I will never make videos,” and the empty camera box in his dresser further supported willfulness. Although the evidence did not definitively disprove the accident defense, the jury were entitled to find intentional conduct based on the totality of the circumstances. The jury instructions adequately conveyed that the Commonwealth had to prove the defendant willfully photographed the victim while knowing the victim was nude; in context, where the defendant was undisputedly present with the nude victim, a reasonable jury would have understood this requirement from the charge as a whole.
On dissemination. “Disseminat[ion]” under G.L. c. 272, § 105(c) requires dispersing the visual image to at least one third party. The ordinary meaning of “disseminate” involves spreading or dispersing material. The Legislature’s graduated sentencing scheme, imposing penalties twice as great for dissemination as for creation of the image, evinces an apparent view that dissemination causes distinctly greater harm by spreading invasive images to “friends, family, bosses, co-workers, teachers, fellow students, or random strangers on the internet.” Transmitting the image solely to the victim, while distressing, does not entail these same harms to reputation, employment, and social standing. The definition of “disseminate” in G.L. c. 272, § 31, which was interpreted in Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 595-596 (2021), to include sending child pornography to the depicted minor, does not control here because the Legislature expressly limited § 31’s definitions to certain enumerated statutes, not including § 105(c). The Legislature enacted § 105(c) in 2008 with knowledge of the § 31 definition but chose not to incorporate it.
Result
The judgment convicting the defendant under G.L. c. 272, § 105(b), first par., is affirmed. The judgment convicting the defendant under G.L. c. 272, § 105(c), first par., is reversed, the verdict is set aside, and a judgment of not guilty is ordered entered on that charge.
Players
- Court: Supreme Judicial Court, on direct appellate review
- Opinion by: Dewar, J.
- Panel: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, and Wolohojian, JJ.
- Below: Trial before Benjamin C. Barnes, J., Edgartown Division of the District Court Department; complaint received and sworn to December 29, 2021; jury trial March 21-22, 2024
- Defendant: Clerence H. Goncalves
- Defense counsel: Haylie Jacobson, Committee for Public Counsel Services
- Prosecutor: John J. Carmody, Assistant District Attorney
A man secretly recorded a sexual encounter in his Edgartown apartment, then weeks later sent a photograph from that recording to his partner. A jury convicted him of both photographing an unsuspecting nude person and disseminating the resulting image. The Supreme Judicial Court affirmed the first conviction but reversed the second, holding that sending a photograph to the victim alone does not amount to dissemination under Massachusetts law.
Clerence H. Goncalves met the victim through an online application for men seeking to meet other men. Goncalves’s profile stated, “I will never make videos.” The two met at Goncalves’s basement apartment on the evening of December 6, 2021. They began a sexual encounter on a couch in the living room, where the victim sat completely nude for approximately ten minutes before they moved to the bedroom.
Goncalves never told the victim about a camera he had installed in a top corner of the living room, approximately seven and a half feet above the floor. The Kasa-branded camera, black and square-shaped, was positioned near a dark pipe and a gap in the white tarp ceiling. It pointed directly at the couch. The victim did not notice it in the dimly lit room.
The Photograph Surfaces
Two weeks later, the victim sent Goncalves a text message. During the exchange, Goncalves sent the victim a photograph showing both men nude in the living room during their prior encounter. A Kasa watermark appeared on the image. The victim responded with messages questioning Goncalves’s conduct in “secretly recording guys that come over” and raising the possibility of contacting the Edgartown police. Goncalves did not claim the recording was accidental. Instead, he replied, “Block u[.] Bye.”
Police searched Goncalves’s apartment after the victim reported the incident. They found the camera still installed, along with its original box in a bedroom dresser drawer. No signs warned visitors of potential recording. While detained, Goncalves told an officer, “This is the last time I’ll be in the police station. I’ll go back to Brazil.” He then said, “So I make porno,” and laughed.
The Trial and Convictions
The Commonwealth charged Goncalves with photographing an unsuspecting nude person under G.L. c. 272, § 105(b), and with disseminating the photograph under § 105(c). At trial in March 2024, Goncalves argued the photograph resulted accidentally from a security camera he had forgotten about. The defense presented no evidence. The jury convicted on both counts. Judge Benjamin C. Barnes sentenced Goncalves to concurrent ninety-day terms, with ten days to serve.
What the Court Held on Photographing
The SJC rejected Goncalves’s challenge to his conviction for secretly photographing the victim. The court found sufficient circumstantial evidence of willfulness. The jury could infer that Goncalves installed the camera himself (the empty box was in his dresser), positioned it to be less conspicuous (high on the wall, near dark-colored features), and aimed it directly at the couch. When confronted, he sent the photograph and made no claim of accident. His statement to police about making “porno” and his profile’s promise never to make videos further supported a finding of intent.
The court distinguished accidental recording by home security cameras. The Commonwealth must prove the defendant willfully recorded a victim the defendant knew to be nude. Here, the totality of circumstances supported that finding. The camera’s placement, Goncalves’s retrieval and transmission of the photograph, and his response to the victim’s accusation all pointed to intentional conduct.
Goncalves also challenged the jury instruction on willfulness, arguing it permitted conviction based merely on intent to operate a camera, without requiring intent to photograph a nude person. The court found no error. The judge instructed the jury to consider the defendant’s state of mind “at the time of the incident” and whether his conduct was intentional or accidental, and separately instructed that the victim had to be “nude or partially nude at the time.” Because Goncalves was undisputedly present with the nude victim when the photograph was taken, a reasonable jury would have understood from the instructions as a whole that it had to find Goncalves willfully photographed the victim while knowing of the victim’s nudity.
Why Sending to the Victim Is Not Dissemination
The court reversed the dissemination conviction, holding that sending a photograph solely to the depicted victim does not constitute dissemination under § 105(c). The statute does not define “disseminate,” so the court looked to dictionary definitions from 2008, when the Legislature enacted the provision. Those definitions involved spreading, diffusing, or dispersing material.
The statutory structure proved critical. Section 105 creates a graduated sentencing scheme. Recording an unsuspecting nude person carries a maximum of two and a half years in a house of correction. Disseminating such an image carries up to five years in state prison. The doubling of penalties reflects the Legislature’s view that dissemination causes distinctly greater harm than creation of the image.
That greater harm comes from spreading invasive images to third parties: friends, family, employers, coworkers, or strangers online. Such dissemination causes reputational damage, economic harm, social isolation, and professional humiliation. Sending the image solely to the victim, while no doubt distressing and potentially threatening, does not entail these same harms.
The Commonwealth argued that the court should apply the definition of “disseminate” from G.L. c. 272, § 31, which the Appeals Court in Ubeda interpreted to include sending child pornography to the depicted minor. The SJC disagreed. Section 31 expressly limits its definitions to certain enumerated statutes in chapter 272. Section 105 is not among them. The Legislature knew of the § 31 definition when it enacted § 105(c) in 2008 but chose not to incorporate it. The court declined to import a definition the Legislature deliberately excluded.
Why It Matters
The decision narrows the reach of Massachusetts’s dissemination statute while leaving intact robust protections against secret recording. Prosecutors can still charge and convict defendants who surreptitiously photograph nude or partially nude persons. Those convictions carry meaningful penalties, including potential jail time. But to secure a dissemination conviction with its doubled penalties, the Commonwealth must prove the defendant sent the image to at least one person other than the victim.
The court included a model jury instruction in an appendix to guide trial judges in future cases. The instruction breaks the offense of secretly photographing an unsuspecting nude person into five elements, including that the defendant “acted willfully in (photographing) (videotaping) (electronically surveilling) [the alleged victim] while the defendant knew [the alleged victim] to be nude or partially nude.” The clarification should reduce instructional challenges on appeal.
For defendants, the holding provides a defense to dissemination charges when the Commonwealth’s evidence shows only that the defendant sent an image to the victim. For victims, the decision may seem to minimize the harm of receiving such images, which can function as implicit threats of wider distribution. The Legislature could respond by amending § 105(c) to explicitly cover transmission to the victim, though such an amendment would need to grapple with the question of how to distinguish punishable dissemination from lesser-included conduct already covered by § 105(b).
Read the full opinion: Commonwealth v. Goncalves (SJC-13880, October 6, 2026).