The Volokh Conspiracy
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From the decision of the Maryland Court of Special Appeals earlier this week in In re S.K.:
The appellant, then-16-year-old S.K., sent a text message to two friends, both juveniles, containing an approximately one-minute-long digital video file of herself performing fellatio on a presumably-adult male…. S.K. sent the digital file at issue to A.T., another 16-year-old girl, and K.S., a 17-year-old boy….
The three then-friends, who regularly exchanged "silly" videos and attempted to "outdo" one another, trusted each other to keep these group messages private. Two months later, after the three had a falling out, K.S. and A.T. reported the incident to, and shared a copy of the video with, Officer Eugene Caballero of the Charles County Sherriff's Office, their school resource officer. Officer Caballero met with S.K., who acknowledged having sent the video to K.S. and A.T. S.K. expressed concern to Officer Caballero that other people had seen the video because, according to both S.K. and A.T., K.S. had by that time shared the video with other students.
S.K. was found to have displayed obscene material to a minor, but the appellate court set that aside: The state statute covers only a "(i) still picture or photograph; (ii) book, pocket book, pamphlet, or magazine; (iii) videodisc, videotape, video game, film, or computer disc; or (iv) recorded telephone message," and thus doesn't include video files. But the appellate court affirmed the trial court's that S.K. was responsible, as a juvenile offender, for distributing child pornography. (S.K. had been sentenced to "probation with several conditions, including that she undergo a psychiatric evaluation"; there is no indication that the juvenile conviction would lead to any long-term legal disabilities, such as being placed on a sex offender list.)
The court held that the child pornography distribution ban applied to S.K., even though she created the material herself, and apparently on her own initiative:
[The statutory language requires] only that a minor appear as a participant in, or object of, sexual conduct …, not that there was an absence of lawful consent [to the making of the recording]….
S.K. …. argues that legislative history demonstrates that the purpose of § 11-207(a)(4)(i) is "to criminalize the actions of child abusers, not the children who are depicted in the imagery." Thus, she contends, the law cannot be applied to individuals who, like her, were engaged in consensual sexual conduct.
Regardless of whether S.K.'s argument may have merit as a matter of policy, it has no merit as a matter of statutory construction. Section 11-207(a)(4)(i) prohibits any person from knowingly distributing "any matter … that depicts a minor engaged as a subject in … sexual conduct." The law is not limited to non-consensual or abusive conduct and it contains no exception where the minor depicted is also the distributor. To adopt S.K.'s argument would require us to read a non-existent exemption into the statute's unambiguous text. That is not our role….
Moreover, even if we were to look beyond the statute's plain language, it does not support S.K.'s contention. Proving a legislative intent to target child abuse is a far cry from proving a legislative intent to protect child pornography that depicts consensual conduct. Indeed, S.K. does not identify any legislative history even suggesting such an intent.
The State's interest in protecting children from sexual exploitation resulting from child pornography is broad: "The State unquestionably has a significant interest in protecting children, and in prohibiting the use of children as subjects in pornographic material." This interest has led other courts to affirm convictions even when the conduct at issue was consensual. See, e.g., A.H. v. State (Fla. Dist. Ct. App. 2007) (affirming delinquency adjudication of a 16-year-old who digitally photographed herself and her 17-year-old boyfriend engaged in sexual behavior, even though neither shared the images with any third party).
The Supreme Court of Washington reached the same conclusion we reach today in State v. Gray (Wash. 2017). There, a 17-year-old who, unsolicited, sent an image of his erect penis to an adult woman, was charged under a Washington law that prohibited "[a] person" from developing or disseminating depictions of "a minor engaged in an act of sexually explicit conduct." …
The State has an indisputable interest in protecting minors from exploitation "as subjects in pornographic material," whether at the hands of others or by their own conduct. Indeed, S.K. was apparently so disturbed when she learned that her video was circulated more broadly than she intended that she missed significant school time. As the Supreme Court has recognized, the harm associated with child pornography does not end with its production, but continues with each instance of circulation. [Footnote: The absence of exclusions for self-produced child pornography in Maryland's law and the laws of other States is supported by the recognition among at least some commentators that a "self-produced child pornography incident" can cause significant "physiological, emotional, and mental" harm to the minor. [Citations omitted.]]
And the court rejected S.K.'s First Amendment argument; here's an excerpt from the long discussion:
[C]riminalization of child pornography that depicts consensual conduct is still supported by most of the same reasons the Court [has] provided in concluding "that the States are entitled to greater leeway in the regulation of pornographic depictions of children." Most importantly, the State's compelling interest in "safeguarding the physical and psychological well-being of a minor" applies to all minors, not merely those below the age of legal consent [in Maryland, 16]. And although the underlying act itself may not, if unrecorded, constitute sexual abuse if any juvenile participants are of the age of consent, the recording of the act still becomes a "permanent record" of the participation of a child who the legislature may reasonably have determined might lack the judgment to understand the consequences of allowing the creation and distribution of that record. See alsoA.H. (observing that a similar Florida "statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment").
Thus, even if the underlying conduct would not qualify as a separate act of sexual abuse, the distribution of the material depicting it can be exploitative and harmful. The General Assembly may also reasonably have determined that allowing the distribution of some pornography involving children—as to which there would be no practical control against broader distribution—might interfere substantially with efforts to combat the evil of child pornography more generally.
For more on the Washington case, see this post.