Underage Sex in the Criminal Justice Bill

UPDATE — THESE PROVISIONS WERE DISCARDED IN THE FINAL CONFERENCE REPORT

View the final conference package here.

One section of the broad criminal justice reform bill before the senate would take away the possibility that consensual sex among kids close-in-age could be prosecuted.

Under Massachusetts law, the penalty for having sexual intercourse with a child — even if no force or threat of force is involved — is imprisonment for any term of years up to life. With this penalty also comes the obligation to register as a sex offender.

Whoever unlawfully has sexual intercourse or unnatural sexual intercourse . . . [with]  a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.

Almost no one would quarrel with the imposition of long incarceration upon an adult who molests a grade school child.

The right penalty is less obvious when both parties are in their teens and they are close in age. We do not want to encourage underage sex, but the harm inflicted on all parties by criminal court involvement may exceed the limited deterrent benefit we may be achieving with our current law.

The law defines a child as anyone who has not reached their sixteenth birthday. If a high school senior and a high school sophomore have sex – with mutual consent — should the senior be punished by incarceration and registration as a sex offender?  Would the gender of the senior matter?

This is commonly referred to as the “Romeo and Juliet” question – not to romanticize teen sex, but to highlight the reality that prosecutors only bring these cases when the younger party’s parents vehemently disapprove of the relationship.

The proposed adjustment — developed by juvenile justice advocates — would create an exemption when both parties are close in age.

Whoever has sexual intercourse or unnatural sexual intercourse with a minor under 16 years of age and:

(i) the defendant is more than 4 years older than the minor;

(ii) the minor is under 15 years of age and the defendant is more than 3 years older than the minor;

or (iii) the minor is under 12 years of age and the defendant is more than 2 years older than the minor

shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term of years in a jail or house of correction; provided, however, that a prosecution commenced under this section shall not be placed on file or continued without a finding.

The case in which most of us are least likely to favor the possibility of prosecution is two teens quite close in age — the almost-16-year-old and the 17 year old.

But interpreting the proposed language, the following more troubling cases would be left to the parents and schools to resolve without criminal court involvement:

  1. A 15-year-old high school sophomore and an 18 or 19 year-old college sophomore (not more than 4 years older).
  2. A 12-year-old 7th grader and a 15-year-old high school sophomore (not more than 3 years older).
  3. A 10-year-old 5th grader and a 12-year-old 7th grader (not more than 2 years older).

When the Senate considers this proposal, we could narrow the exemptions.  For example, we could require the parties to be not more than two years apart, instead of allowing wider ranges for older kids.

The question is not whether we are comfortable with children breaking boundaries at an early age.  Rather, the question is whether we think that the crushing penalties of incarceration and sex offender registration should be applied to young people engaging in these activities without force.  Of course, the younger the person, the less their ability to make any decision about sex, but that does apply to both young people.

I think I can support this provision in the bill even though it would decriminalize possibly harmful conduct that I want to discourage.  The alternative — criminal court involvement — is actually harmful for everyone involved, the younger party as well as the older one charged.  A parental response seems more appropriate.

But it’s admittedly a tougher call as the age gap widens and I’d be very interested in your perceptions of this issue.

For a survey of similar provisions in other states, follow this link.

For other provisions of the Senate Criminal Justice Package, follow this link.

Response to Comments, Friday, October 13, 930PM

Thank you to all who have weighed in here. It’s clearly a delicate subject, but it is good to know that the overwhelming majority generally support the direction that we are moving in. Will see how other Senators feel, but I’m hopeful we’ll keep this in the bill, possibly with minor adjustments.

I’ve closed the thread to comments, but please feel free to write me directly at william.brownsberger@masenate.gov with any additional unexpressed thoughts or questions.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

105 replies on “Underage Sex in the Criminal Justice Bill”

  1. I competely agree with this change in the law. I have been horrified by the prosecution of 18 year olds who slept with their 16 year old girlfriends. I think I’d feel a little more comfortable, however, with the age gap being three years at the top. I think when a man turns 20, he shouldn’t be sleeping with a 16 year old. It’s common, however, for boys to turn 19 when they’re seniors in high school, so a 3 year gap is appropriate.

  2. I agree with this important effort. People who are sure their teens aren’t having sex are probably deluding themselves. In any case, evidence shows that prosecution of this is extremely discriminatory against minorities. Rich Braun’s scarlet letter comment is on point.

  3. Thanks Will. I like and support the intent. But I agree with Ann on the use of ‘may’ versus ‘shall’. Also, the ‘unnatural’ is much out place.
    I do not understand why a consensual sexual act is criminalized at all, unless there is harm.
    Is it wise to criminalize if harm can not be assessed(characterized?). Is it so hard to characterized the harm that we need to punish the act and not its harm?

  4. I hope that you will support this bill. I have no problem narrowing the exemptions. The penalty for underage sex among teenagers is way out of proportion to the offense.

  5. I support this proposed adjustment. Supervising, advising, counseling, and disciplining young people should be left to parents or guardians, without the life-changing threat of incarceration or sex offender registration.

  6. I hope you will vote for this reform, and without watering it down. The criminal justice system should not come into play when young people engage in consensual sex. Just one qualification: the term “unnatural intercourse” sounds like an invitation to prosecutorial abuse unless there is some settled understanding of this term in the law of which I am unaware.

  7. Hi Will

    Having been in the mental health field for 46+ years, close to 30 of those in Belmont, I am strongly in favor of a move to decrease the extreme legal consequences for young “offenders”. It’s not at all clear to me that this law goes as far as I would consider going.

    I don’t believe that the law has any real deterrent impact on the population involved. I’m quite sure that some high percentage of cases involve confused adolescent impulses that are not, at base, criminal.

    If the question is, does this law go too far? I would say no. If the question is, could this law move even further in the direction of eliminating life-long consequences for poor choices as a young person, my answer would be yes.

  8. I too would support this bill with reservations due to the current consequence of incarceration. If the younger person is age 10 or 12 it can be a case of being taken advantage of, so maybe resolved outside the court and the older person facing some sort of consequence (counseling?). Some cases are egregious and some aren’t at that age, someone would have to make a judgment call. When I was in H.S. girls dated older boys, and in junior high same age people said they were having sex and no one seemed the worse for it. – John

  9. I think decriminalizing consensual sex when the ages are close makes sense. Ruining someone’s life for this is unnecessary. And forcing them to register as a sex offender is beyond ridiculous.

    Common sense should prevail in these situations.

  10. If “the crushing penalties of incarceration and sex offender registration” are the issue, shouldn’t they be addressed instead?

  11. I agree with the proposed adjustment. We cannot be naive and think that teens, even truly young teens, are having sex. If it is consensual, I don’t think the older teen should be criminally prosecuted. Teens are known to make foolish choices, but they shouldn’t be criminally prosecuted for it if no one is being forced.

  12. This seems like a better approach than the current law. The particular tough cases you mention are troubling, but I think allowing schools and parents to sort out solutions would be better than handing it over to the courts.

  13. This is a complicated issue but I feel that involving the school and parents is a good place to begin.

  14. Dear Will, The prolonged period of dependency conflicts with the timing of hormonal surges. Result is that absent the concept of “emancipated minor” (do they still use that?) or a young person regardless of age who can be self supporting, the result tends to be that the parents (or grandpaarents) are responsible for the consequences for which they may or may not be surprised.
    Theidea of consent devolves on those parents. So why not insist that they give written consent? And for boys as well as girls. That will do away with the gross winking of complicit parents, and the (I think) silly games with numbers, which glaze the eyes.
    From you impractical friend, John M.

  15. Hi Will,

    I favor the changes, and do not think the age ranges need to be limited further. Each situation has it’s own particularities that are better handled by adults who know both kids.

  16. Easing pedophila agenda and highest bit coin commodity into mainstream: pre teen sex.
    Citizens: 10 year old kids need legos and dolls to play with, not dicks. Don’t drag the rest of the state into pedophila agenda with Association of Family and Consiliatory Courts (AFCC) masquerading as people who have interests of children. Only interest is Raping kids and federal funding. Wake up Mass! Yours is a pedophila condoning and assisting state and you don’t k is because somehow not many read the actually proposed bills or the ones that get changed between house vote and senate.

  17. Hi Will,
    This is indeed a thorny issue that needs to be grappled with. The penalties are indeed too high.
    There is however the risk of bringing the same murkiness that is in date rape to the teen population.
    My inclination is to keep the age at 16 but decrease the penalties.
    In addition an element of black-and-white is good in keeping down the risk of the child with the richest parents winning the case.

  18. Current knowledge holds that brain development in teenagers and even people in their early twenties is incomplete. And didn’t the Supreme Court decision not allow life sentences for people 17 and under? I wonder if treating any case of sexual intercourse involving someone under age 21 needs to be treated in juvenile court, or in something closer to drug courts where issues can be considered on a case by case basis. Apparently the need to register for life as a sex offender is gone? That is probably a good idea.

  19. I support this legislation, but with proposed modification. The reference to unnatural sexual intercourse is intended to allow prosecution for sex acts that do not involve penetration of a vagina by a penis. The term is highly problematic in that it is rooted in the days when homosexual activity between consenting adults was considered a criminal act. To allow for prosecution of adults engaging in sex acts with children, the statute must use language more encompassing than “sexual intercourse” but should not use archaic language historically used to persecute homosexuals. A suggestions may be “sexual intercourse or other sex act.”

  20. Senator B, thank you so much for working, for many years, to put “justice” into the “criminal justice system,” and to make it a humane structure to protect each of us from all of us in the most balanced possible way. We have sacrificed so many lives to a draconian injustice system distorted by racism and religious zealotry, boasting of merciless and useless punishment and revenge. We have destroyed individuals, families, and communities for terrible reasons and with terrible results.

    So I trust your judgment in fine tuning the parameters of this legislation, and all the other long-overdue justice reforms proposed. Eventually, we should decriminalize all abused substances, and instead of perpetuating the world of violence, both criminal and judicial, that results from keeping them illegal, we should treat their root causes and their impacts.

    I wish I could have engaged your legal wisdom, compassion and activism to address the civic corruption rife in our city and state (e.g., the BRA), but I’m grateful to have you in a place where it is within your power to save so many people from injustice.

    Thank you!

  21. I’m no fan of determining whether or not harm has happened based on the *age* of the participants alone. Age is a fairly crude proxy for power differences, and also for intelligence and reasoning ability. Children who *are* close in age can coerce and abuse other children — and blindly applying an age-based rule means that that can be overlooked. MANY trauma inventories do this: you can’t just say, yes, I was sexually abused — or raped — by someone close to me in age. It has to be someone five or more years older. I’ve known people who were abused by *younger* siblings.

    But also, a very bright and mature youngster might be able to be in a mutual, consenting relationship with someone older than them, even with a good-sized age gap. I’ve known people who were quite clear that this had been true of them.

    And as you say, taking a child into the court system and treating them as adult sex offender, with all the punitiveness and life-long registration requirements doesn’t make sense either. IMO, if you’re too young to drink and smoke, you’re also too young to be treated as a full adult in the justice system.

    Suppose someone five years older than me raped me. I’m fifty-six, so no one would look at the age difference. Instead, they’d be looking at whether harm and coercion happened: was there coercion? Was there force? Was I drugged? Was there a power imbalance (was this my boss?)

    What’s the course of least harm?

    Maybe it *should* be left up to the judgment of parents, guardians, teachers if the age difference isn’t great — BUT the advice they get about this should include how to check for and assess coercion, abuse — trouble. Perhaps there should even be resources for this. (Maybe not part of this legislation or legislative cycle, I know…!)

    And also, IMO, underage offenders, even ones who have been abusive, coercive, even violent, shouldn’t be slapped with adult penalties. Particularly since a 16-year-old who has sex with a 13-year-old probably isn’t a pedophile, and could well be just a confused, stupid kid — but a 26-year-old who has sex with a 13-year-old likely has a whole lot of wrong going on.

    In any case — whatever the age, abuse, violence, or coercion shouldn’t be unaddressed.

  22. I would favor not making it a criminal offense in the cases that you have mentioned. An adult and a minor is a different situation than two young people. We do not need to make sex offenders out of boyfriends and girl friends. When I was young in the 1960’s an older boy (Senior) dating a younger girl (Freshman) was not considered wrong if it was consensual even though parents would object. Also, many people in our state have come from other countries where the age of consent is lower than 16 and they may not fully understand our reactions to some young relationships. As long as they are consensual, I do not feel it should be criminal.

  23. Hello, Will. Thank you for, as always, thoughtful consideration of a complicated issue.

    I appreciate there is a real problem you are trying to address. If two teenagers, both within a similar range of emotional maturity and sexual experience, engage in truly consensual activity, and unhappy parents, sometimes motivated by racial or religious animus, use the law in a vengeful way, that is terrible.

    On the other hand, “consensual” does not mean simply the absence of overt physical force. We recognize that the power imbalance between a supervisor and subordinate at work makes it hard to distinguish between consent and coercion, even when both parties are adults. There can be extreme imbalance of social power between teenagers just a grade or two apart, as sometimes expressed in hazing and bullying.

    While age is always an imperfect measure of maturity, the current law expresses the sense that at some stage a child is incapable of expressing true consent, in the sense of sharing responsibility for the behavior. The revision seems to shift the question from whether the younger party is capable of consent to how comfortable we are with behavior. If a particular 15-year-old high school student is capable of truly consenting to sex with a 18- or 19-year-old college student, it’s not clear how or why that capacity to consent disappears just because the college student is 20.

    The multi-part age differential rules also create an illusion of precision that isn’t real. As a more minor point, depending on how the differential is calculated, it could create odd discrepancies — for instance, if the differential is between full (rounded) age, then the same behavior could change from legal to criminal on the older party’s birthday. That minor anomaly could be addressed by measuring the distance between birthdays, not the difference between the full (rounded to a whole number) age.

    It might be better to make some adjustment in the consequences for the older party, rather than a change in the protected status for the younger party. For instance, arguably below a certain age the potential term might be mandatory counseling, rather than imprisonment; or the lifelong requirement for registry as a sex offender might be suspended, or probationary.

    If the only option is something along the lines of the proposal you describe, I would probably go with a fixed age difference, v. a multi-part sliding scale.

    If there were a way of insuring some kind of “enhanced consent” category below a certain age, that might help, but I don’t see a practical path to achieve that.

    If it were easier to protect against cases of manipulation or coercion, short of overt physical force, and all the remaining cases were “truly” consensual, then it might make sense to lower the age of consent. I don’t believe truly consensual cases should be criminalized. But I worry that your proposal is shifting the standard to what couplings adults feel comfortable about or consider more “typical,” v. focusing on whether both parties are capable of meaningful consent.

    Arvy Mackevicius

  24. These changes really make sense.Consenting teens should not be branded for life. Such sex may be stupid, but that is nut criminal.

  25. It seems a judge and/or others involvement on a case by case basis should be included. If the court is involved it is a good idea to create a link between parents and teachers etc., to invite opportunity for discussion on this, as was mentioned previously.

    And It would be important to add to this bill to have all records of those negatively affected by the past version of this law updated and expunged where applicable. Or I assume that would follow.

    Also, removing the word ‘unnatural’ seems reasonable.

    .All in all this bill is an improvement over prior one with a bit of adjustments, adding considered amendments soon after if time is an issue in getting it past.

  26. I agree with your position.

    I don’t think underage sex should be the purview of the criminal courts. I think most people who support the current law are concerned about older boys being with younger girls, but I would point out that 15 year old girls can be more mature than 19 year old boys. As long as the sex is consensual, I don’t think it belongs in the courts. It is up to the parents to deal with these situations.

  27. Will,

    I have not always agreed with your positions in recent years, but I have always found those positions well reasoned and articulated. For what it’s worth, I’m 100% with you on this one: the less the legal system imposes itself in cases of consensual sex, the better. The historical view of laws that have criminalized sex, as between people of different races or of the same gender, is not a sanguine one.

    For the marginal (and admittedly troubling) cases you cite, such as those involving fifth-graders, it seems to me these are better handled (where intervention is warranted) flexibly and on a case-by-case basis — by parents and school authorities — rather than by any blunt and heavy-handed intervention of the criminal justice system.

    It also seems to me that where sex between minors, however ill-advised, is nonetheless consensual, emotional harm is far more likely to ensue from the reactions and overreactions of parents and authorities than from the behavior of the minors per se.

    As to specific age differentials, as with the age of consent, any numbers you choose are going to be imperfect, punishing some people who ought not to be punished, and vice versa. At least the proposed differentials here reflect some sensitivity to the process of maturation, and rightly shift the balance toward greater protection with decreasing age. To me, they seem well judged.

    Finally, I do hold with those who have taken issue with the word “unnatural” in the proposed language. Perhaps the phrases “sexual intercourse” and “unnatural sexual intercourse” have well understood legal definitions (?), but to me they seem to run afoul of what science tells us about sexual behavior in the natural world.

  28. How absolutely absurd to think a child under 16 could give consent to sex. That is disgusting.
    We firmly oppose any bill that reduces the protection for children from sexual predation under any guise.

    Connie Valentine M.S.
    CA Protective Parents Association

  29. In response to the comment saying this weakens protections, I would counter that not prosecuting and branding another child or young adult as a sex offender is different from involving social services. Perhaps therapy or other interventions can be allowed. But persecuting as a sex crime is too blunt of an instrument to handle such a delicate subject.

  30. Will,
    There are so many issues not talked a bout here.
    First – why is underage sex so emotionally charged? For the parent’s it’s that they are most responsible for the consequences of an underage pregnancy and naturally want to control at all costs their children. BUT I would argue don’t want them to be subject to the criminal justice system. Then you have the age old Religious pressure which I believe is what has caused the overly punishing criminal laws that are on the books. While I am not advocating or suggesting that all people between 14 – 20 are capable of responsible sexual relations. there probably some that are and the proper way to address this conduct is through social services and not the courts. Sexual conduct is not something that the criminal system is properly equipped, morally or ethically. It’s way past time that it is put back on the parents (with help from social services, where it belongs. To attach criminality to the young people in our care is a shame and grossly unjust to the whole families involved.

  31. I welcome the chance to respond, as I am involved with a project of the Criminal Justice Policy Coalition, the Sex Offender Policy Reform Initiative (SOPRI) that is working for more humane and effective sex offender policies. We support this measure and another bill, H3066, that would prevent anyone who was convicted of a sex crime before they were 21 from having to go on the adult Sex Offender Registry. That is a draconian penalty which will prevent any young person labeled a “sex offender” from pursuing an education, getting a job, or having any kind of a normal life. It is draconian even for adult offenders, only a small number of whom are sexual predators. (There are 31 different crimes that can put you on the Registry.)

    But to return to the issue of consensual sex among teenagers. We don’t want to encourage sexual activity, but laws that try to “legislate morality” never succeed. They become selectively enforced. Prosecutions only occur when a parent feels a daughter has been taken advantage of and demands punishment for the offender. No one is helped by such action, least of all the daughter, who not only loses her relationship, but may be burdened with guilt about her boyfriend’s fate for the rest of her life.

  32. I like this as a guild line but we need to give judges a little wiggle room weigh the situation especially if factors fall just outside the defined limits.
    The criminal justice system also needs a serious overhaul when it comes to the District attorneys office – where as prosecuting cases that are iffy should be discouraged and in fact – I believe defendants should be able to recover legal fees when found not guilty or the case is dismissed – which might put a more balance into the criminal justice system

  33. The margins are too large. I would reduce the the 4 to a 3 and the 3 to a 2.

    For kids under 14, how can this law possibly apply? Would they not be tried as juveniles?

  34. This portion of the bill appears designed to assuage the guilt of some of your constituents. I believe the age of consent should remain at 16. No one needs the lifelong emotional burden of becoming sexually active before that age. Why not educate young men and women on the current law instead?

  35. This portion of the bill appears designed to assuage the guilt of some of your constituents. I believe the age of consent should remain at 16. No one needs the lifelong emotional burden of becoming sexually active before that age. Why not educate young men and women on the current law instead?

  36. Overall I support this proposal. As you say, involving to courts is deeply harmful to all parties. Sex offender registration for crimes committed while a minor is also deeply problematic. I would also support minor variations on this bill (where the details for age differences, etc are slightly different).

  37. I support the current version of the bill. I certainly understand the concern about young people in a highly sexualized culture becoming sexually active, with full felt consent, before they are really ready for it. I also firmly believe this should be a matter for parents and communities (schools, religious communities, etc.), not for police, courts, detention centers, or sex offender registries. If the relationship is fully consensual, neither party should be punished for it.

    I also know that young people grow up at very different rates. When I was 15, I started a 5-year relationship with someone who was 3 1/2 years older than I was and I had known all my life. We were peers and equals. Looking back at that relationship decades later, I can only be glad it happened. Criminalizing him because of our age difference would have been a tragedy and a travesty.

  38. I agree with your reasoning, my snap reaction is that the age gaps ought to be one year narrower but as written it is an improvement over what we have now.

    I agree with others’ concerns about power differentials between older and younger — I think that is something that might be mitigated by narrowing the range. On the other hand, if judges with actual experience in these cases favor allowing a wider gap, I’d gladly defer to their experience. I don’t have a good handle on what fraction of these relationships are predatory, versus not, but I think we should avoid ruining lives over something that is merely unwise, and that inevitably means that a few bad cases will slip through.

    And I understand that this is all approximate and best-effort and not perfect for each and every instance — but again, better than what came before.

    Thanks for your thoughtful work on this.

  39. HI will

    Difficult. I agree with your statement that a parental response seems more appropriate – at least in many or most cases. I do wonder though: Are there cases where there is a clearly a predatory behavior pattern in one of the youngsters ? . Also, have there been young “repeat offenders”? If so, these behaviors need to be discouraged as early as possible. Parents alone may not be able to cope . Should a psychiatric or other informed evaluation be required for the child , and possibly some sort of evaluation of the parent , at least in some circumstances? I think there needs to be room for evaluation and requiring appropriate arrangements to suit individual circumstances with these young people.

  40. Yes, this is full of wrinkles but I am with you. Thank you.
    I also appreciate the many who have thoughtfully commented in support of this bill.

  41. I am a school nurse in Boston. This looks good Will. We have the highest incarceration rate and I am so glad you are working on these reforms.
    Thank you so much.

  42. Thank you for this opportunity to comment. I favor decriminalizing consensual sex between teeangers. The law is the last thing on kids minds when they have sex. they are in their own world. the reality is that a significant percentage of teenagers will have sex in which one or both are under age. Whether you are convicted or not should not depend on the bad luck of being caught and it would be crazy to prosecute everyone engaging in this behavior. Besides, there are a variety of opinions on teenage sexuality. The matter should be left up to the family, better sex education and the individuals involved to deal with both preventing consensual but inappropriate sexual activity and advocating sexual behavior that promotes the sexual health of young people. Criminalizing such behavior can only do harm to the young people involved.

  43. I certainly do not think that there should be an excessive punishment for teenagers engaged in mutually agreed upon sexual relations. Here, however, is the concern — how can we ascertain that the agreement applied to both parties –i.e. was the young girl entirely in favor of the sexual contact? If we could be certain that she, as well as he, agreed to the contact, the matter can be handled by the family.

  44. Thank you so much, Will, for your leadership and hard work in crafting this historic legislation. I’m glad that this issue has found its way into the bill, and I hope that the age ranges will not be narrowed–if anything, I’d like to see them widened or eliminated, especially at the younger end where both “perpetrators” and “victims” are still children. Even in the more “troubling” scenarios, the keyword is “consensual,” and absent evidence of violence or intimidation, no child or youth should be threatened with incarceration and life on the registry for pushing the limits of what grown-ups deem acceptable. A good talking to, counseling, maybe… but as you say, the consequences of a criminal conviction are crushing and the nightmare of registration is virtually unending. For anyone interested in life on the registry for people convicted as juveniles, here are two great resources:

    Raised on the Registry, by Nicole Pittman (Human Rights Watch, 2013)
    https://www.hrw.org/report/2013/05/01/raised-registry/irreparable-harm-placing-children-sex-offender-registries-us

    The List, by Sarah Stillman (New Yorker, March 14, 2016)
    https://www.newyorker.com/magazine/2016/03/14/when-kids-are-accused-of-sex-crimes

    A question: The language of both the original law and the new bill seems to be limited to cases where some kind of penetration has occurred, including “unnatural” acts (how quaint!). Nicole Pittman writes that juvenile offenders can be forced to register for such behavior as public nudity and touching another child’s genitalia through clothing. Is that the case in Massachusetts?

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