BOSTON, MA — If a state legislator has her way, creating adult content featuring the elderly or the disabled will become a criminal act in Massachusetts.State Rep. Kathi-Anne Reinstein [D-Revere] has submitted two bills that would impose penalties including prison terms of 10 to 20 years and fines ranging from $10,000 to $50,000 on anyone convicted of producing material that contains even nude images of people with physical or mental handicaps or who are older than 60.

Reinstein said she wants “exploitation” of the two groups, whom she evidently believes are either incapable of consenting to sex or shouldn’t be engaging in it, to be punished in the same way sexual exploitation of minors is punished.

“We know that it’s happening,” Reinstein told the Boston Herald.

Reinstein referred to recent reports about an online posting offering sex with a “cognitively impaired” virgin, caretakers who took sexual photos of their disabled boarder during a cross-country trip, a man with cerebral palsy who was mocked by caretakers while they snapped pictures of his genitals, and a mentally retarded woman whose images were posted on the Web by relatives.

The state’s Executive Office of Elder Affairs backs the bill, based on Disabled Persons Protection Commission statistics that indicate 44 rapes and 29 sexually related assault-and-battery cases were reported during October, November and December of last year.

“I didn’t realize until this whole scenario was brought to my attention that it was an issue,” Reinstein told the Boston Herald. “If we can extend protection to the elderly and the disabled, I think it’s kind of a no-brainer.”

According to a district attorney who helped craft the bills, the legislation is an attempt to catch up with technology.

“Obviously with the technology evolving, the crimes committed using that technology have increased,” Elizabeth Scheibel told the Boston Herald. “That’s clearly the case. All we’re trying to do with these two pieces of legislation is to protect our two most vulnerable populations.”

A similar effort reportedly is underway in Illinois, where legislators have added protection for “severely mentally retarded” persons to existing child-porn laws.

First Amendment attorney Marc J. Randazza said the measures in both states have numerous problems.

“The measure misses the mark, as it is an affront to the dignity of the elderly and the disabled alike with a heaping helping of unconstitutionality to round out the bad legislation buffet,” he wrote on his Legal Satyricon blog.

“There are nightmare scenarios where people, due to mental infirmity, might not be able to give truly informed consent — and in those cases, I too, would support measures to punish those who might exploit them,” Randazza continued. “But, Reinstein’s law goes way too far.”

Randazza provides several examples of “sexy seniors” — including Sophia Loren, Sylvester Stallone and several groups of “seasoned” women who have posed nude for charity calendars — and links to the website of a wheelchair-bound adult actress.

“Yes, the state of internet porn is proof that we really are all beautiful,” Randazza noted in his blog posting. “But don’t tell that to Rep. Reinstein. Her constitutionally sloppy legislation doesn’t simply target exploitation of the vulnerable. It targets my parents who are, by any measure, still pretty damn good looking — even if they are both over 60. Dare I say that my mother is still knockout gorgeous, and strangers still ogle her? I’m proud to say that she and my dad certainly still do it.

“But you know what? My mom does have a bit of a disability (as defined by Massachusetts law). She has a lung condition that is a ‘long-term physical … impairment that prevents or restricts [her] ability to provide for … her own care or protection.’ Uh oh.”

Under Reinstein’s proposed legislation, Randazza’s parents would not have to become internet-porn sensations in order to be held criminally accountable should their private moments be captured on film.

Under the Massachusetts bills, “You can’t make it for any reason whatsoever, not even for private enjoyment, no exceptions, no nothing,” he wrote in his blog posting. “Under this law, if my mom and dad want to set up the ol’ video camera in their bedroom and make some in-home entertainment, they would be looking at 10 to 20 years in prison.”

In the final analysis, he noted, “The ‘elderly’ and the disabled have a right to express their personal sexuality, and those who may want to view such materials have a right to receive them. The purported legislative intent of this law, protecting the vulnerable, could easily be accomplished by using the existing laws. Or, if Rep. Reinstein insists on sponsoring a new bill, it could be drafted far more narrowly and intelligently, and without trampling anyone’s personal liberties.”