Free Speech

16-Year-Old Distributed Child Pornography—by Sending Sex Tape of Herself to Friends

So holds the Maryland Court of Special Appeals, affirming a juvenile court finding of responsibility.

|The Volokh Conspiracy |

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.

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  1. I’m not sure that digitize video file doesn’t fall Within the definition of video tape.

    I don’t think we want to legalize sexting between minors for fear of increasing the supply of child pornography. But it certainly shouldn’t be treated the same way as other types of child pornography manufacturing. There should be a statutory fix changing the type of crime in addition to liberal use of prosecutorial discretion.

    1. What harm would increasing the supply of child pornography do, if it’s the children themselves who are increasing it? In fact increasing the quantity supplied that way lessens the quantity demanded of kid porn made from non-consenting kids.

      1. The article mentions it — she had harmed herself because when it got out beyond her circle, she missed many days at school, presumably hiding in embarrassment.

        The problem isn’t that. It’s the law is a ass aspect that she damaged herself, so the government has to heap more damage and permanent infamy on her.

        Gotta love it when the government holds children responsible for doing things it has decided they’re not old enough to be responsible to decide to do yet. Double points if holding them responsible amplifies the damage the law ostensibly seeks to protect against.

        “She cut off her finger. We shall cut off two more. That’ll learn her!”

    2. Arguably, that’s what happened here… I don’t think an adult/abuser would be sentenced to just “probation with several conditions, including that she undergo a psychiatric evaluation.” Put differently, the juvenile justice system seems to be doing it’s job.

  2. But that ignores the freedom-of-speech jurisprudence that says non-obscene kid porn can be banned only because making it requires exploit’n of children.

    1. “…exploit’n of children.”

      But that can’t be just a ‘consent’ based standard. Otherwise, the stereotypical abuser will just pay the child to send them stuff.

      1. Isn’t that the same thing non-abusers do?

    2. The 1A jurisprudence on child porn is premised on avoiding harm to children, not ‘exploitation’.

      The Maryland legislature, relying on a number of sources briefly listed in Footnote 6, endorsed the view that self-produced child pornography can cause significant harm.

      You can dispute whether or not that finding reflects the best available knowledge on mental health, and maybe you are right (I don’t have the requisite background in children’s mental health to comment) but at least state the position clearly.

      1. I thought the 1A jurisprudence on this was based on lack of a minor’s presumed ability to consent to this sort of thing. Otherwise they could’ve ruled that non-obscene porn generally is a 1A exception because of harm to adults. Did harm even come up as an issue in the “community standards” opinions? I would think harm to be an objective standard, not something that can vary based on the community.

        1. No, it’s not about presumed ability to consent, that makes no sense because there’s a huge set of things to which kids cannot consent but are not illegal for third parties to possess or distribute.

          As for the “harm to adults” argument, if you actually read the opinion you would realize that this very same argument was rejected by the Court in Ferber:

          This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material. Ginsburg v. New York

          .

          Please do read the opinion.

      2. The Maryland legislature, relying on a number of sources briefly listed in Footnote 6, endorsed the view that self-produced child pornography can cause significant harm.

        First, nothing in the decision says that the Maryland legislature relied on those sources in passing its law.

        Second, I sure as heck hope that the Maryland legislature did not rely on those sources. A handful of half-assed law review articles.

        1. Why can’t the legislature credit those sources (or those making similar arguments) if they feel they are correct?

  3. If some fourteen year old freely spreads around a sex tape, child pornography is being promoted, and the problem is not just the possible harm to one person. A minor also is regularly punished for doing things that harm themselves even if they don’t think so. And, this is different from mere performing of the act but spreading it around in a way that might harm her in the long run. Criminal law can be involved here though the specific punishment shouldn’t be too broad to be counterproductive. But, a criminal fine or whatever to deter this sort of thing might be warranted.

    1. Who else is possibly harmed? The viewer/reader? The video/motion picture industry?

      1. The spreading of material that purports to be a minor enjoying sex has the possibility of encouraging sex with minors in general. If sex with minors — especially below a certain age — is harmful, this would possibly be harmful even if it doesn’t harm the minor in the video.

        The first part is far from a reach — videos of people enjoying something generally is likely to help encourage that sort of thing. It’s part of the basics of advertising. The thing being promoted here is sex with minors. Someone who is thirteen very well might spread such things around.

        1. Wouldn’t that also apply to reporting on such cases, or on statistics or polls on people’s experience? If not, then maybe kid porn should be allowed if it portrays actual sex w actual minors, but not if it portrays simulated sex and/or simulated minors.

        2. The spreading of material that purports to be a minor enjoying sex has the possibility of encouraging sex with minors in general. If sex with minors — especially below a certain age — is harmful, this would possibly be harmful even if it doesn’t harm the minor in the video.

          That would not seem to me to pass muster under the 1A. In that case, you are punishing speech based on the ideas it expresses, not based on the inherent harm caused by creating that speech (which is the traditional argument against child pornography.) Many things may have the possibility of encouraging sex with minors in general, but are obviously constitutionally protected. A person is free to explicitly state that sex with minors is a good thing. A person is free to advocate for sex with minors, or to write stories involving sex with minors. Or even to depict it on film as long as the actors are of age.

          1. I agree, except for the explicit finding that self-created pornography is indeed harmful to the minor creating it.

        3. re: “has the possibility of encouraging sex with minors in general”

          No, it doesn’t. That’s rank psychobabble speculation. It’s right up there with all the discredited “pornography causes rapists” scaremongering.

  4. Well, so much for prosecutorial discretion. I hope there are picketers outside that person’s house.

    1. the court found S.K. to be delinquent and placed her on probation with several conditions, including that she undergo a psychiatric evaluation. S.K. appeals those findings.

      OK, before you start breaking out the pitchforks, the court did not impose a custodial sentence nor did they force her to register as a sex offender. Instead, she got probation and to talk to a shrink about perhaps getting some mental health help which she may very well need.

      I’m sympathetic to the argument that SK cannot be held responsible at all, contrary to the policy judgment of the Maryland legislature. But don’t cast it like some kind of crazy prosecutor throwing her in jail for a decade.

      1. >But don’t cast it like some kind of crazy prosecutor throwing her in jail for a decade.

        I didn’t do that. I’m happy criticizing the prosecutor simply for bringing charges in the first place.

  5. This stuff is out of control.

    Its like getting charged with forgery for signing your own name or defamation for talking bad about yourself to third parties.

    1. Did you read the opinion? Or footnote 6?

      1. Yes. And?

  6. Getting a little more provocative, given the standard arguments that looking at CP inherently exploits the subject what if the subject is long dead? What if the subject is now a senior citizen and voluntarily releases pictures of themselves and even claims they find it cathartic? Are you still exploiting a 200 year old pile of bones in a coffin somewhere or a grown woman who openly wants you to have her images by looking at pics of them in the bathtub?

  7. Neither Romeo nor Juliet could be reached for comment.

    1. Yeah, but look what happened to them.

  8. Has anyone who failed to commit suicide ever been charged with attempted murder?

    If not, what would be the likely outcome?

    1. Has anyone who fail to commit suicide ever been ordered to undergo a psychiatric evaluation?

      If so, could that standard be applicable here?

      1. Sometimes a curiosity question is just a curiosity question. Your path is pretty constricted if you always twist questions into your own frame of reference.

  9. So I’m on the fence about whether such acts by SK should be illegal but they certainly shouldn’t be punished as harshly as we do.

    However, that friend that then showed other people should be charged with distribution and given a slap-on-the-wrist punishment.

    1. Harshly? She got probation and a shrink. What case are all y’all reading?!

      1. They have to go through a shitty situation and negotiate our byzantine legal process. In many of these cases the kids end up on a registry for a short time afterwards. One boy going to be forced (with drugs) to get an erection so that the cops could photograph it to compare. The ensuing bad publicity made them drop charges, which was good because the possible punishments were incarceration and sex offender registration. Harsh punishments.

        They usually try to get these kids afraid of the ridiculously heavy-handed punishment and then have them plead to a lesser charge, which usually entails probation, but sometimes the kid doesn’t want to knuckle under and they try to fight it. If they lose it’s automatic sex offender registration. So yeah, harsh punishments.

        Besides, probation was more of a punishment than needed. I also don’t think a psychiatric evaluation is needed just because she was essentially sexting. The most she needs is a stern talk from the judge, a guardian, and a school counselor.

        1. Thanks for your expert psychiatric opinion on a subject who you have never met.

          Will wonders never cease.

  10. Part of the problem is that the “child porn” laws were written at a time of hysteria on the subject, and now any legislator who thinks they’re too broadly-written and tries to get them modified or repealed faces crucifixion at the polls. Another part of the problem is that we insist and insist and insist on conflating physically-sexually-mature individuals below an arbitrarily-set age with prepubescent children. Not that long ago, that girl would be considered old enough to be married.

    1. But this is still the time of hysteria on the subject. 50-60 yrs. ago nobody even talked about kid porn as something distinct from porn generally, & if anyone had brought it up, it would’ve been thought just a tiny, insignificant minority taste within a vast sea of something that was considered a social problem. Readers & viewers of porn generally weren’t considered more or less of a social problem regardless of the type of porn they preferred?except as it might’ve evidenced their homosexuality! It was the commercial prod’n & distrib’n of porn that was considered the problem at that time.

      Now we’ve entered a time (worse in Britain than in the USA) where people are afraid of images of children that wouldn’t even have been considered remotely problematic 40 yrs. ago, let alone pornographic. Pedophilia has been inflated into a concern far outstripping its prevalence. And yet, paradoxically, this is largely a result of children’s being sensualized in pop culture. They weren’t sexually attractive decades ago, now they are? And this is “good-bad” according to mass media? Like we “should” be attracted to them, & this is a problem?

    2. Another part of the problem is that we insist and insist and insist on conflating physically-sexually-mature individuals below an arbitrarily-set age with prepubescent children. Not that long ago, that girl would be considered old enough to be married.

      In fact, normal men are supposed to be attracted to women more the younger the women are. Pre-teen, no, but as the song says, “faster horses, younger women, older whiskey, & more money.”

      Except, bizarrely, lately there’s been a tendency to impute sexiness even to the prepubes, esp. of girls. Many mothers seem to think attractiveness in their baby daughters must include sexiness. I think there’s been some toning down of that tendency very recently, but it was crazy for a while w baby clothes embroidered w slogans suggesting sexual attraction.

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