Sex Crimes

Sexting as Child Pornography

The highest court in Maryland finds that the State's statute prohibiting "child pornography" applies to minors who sext videos of their own sexual activity to friends.

|The Volokh Conspiracy |

From the opinion of the Maryland Court of Appeals (Maryland's highest court) in the case of In re S.K., decided this past week:

"Like all teenagers, S.K. sought to impress and humor her closest friends. During the 2016–17 school year at Maurice J. McDonough High School in Charles County, Maryland, the 16-year-old female maintained a group chat on her cellphone for text messages with her best high school friends, A.T., another sixteen-year-old female, and K.S., a seventeen-year-old male. The group chat was used, among other things, to send silly photos and videos in an effort to "one-up" each other. The trio hung out together and trusted one another to keep their group messages private.

As part of the "one-up" competition, S.K. sent a one-minute video of herself performing fellatio on a male. Later in the school year, when there was a falling-out among the trio of friends, the video was distributed to other students at the school and shared with the school resource officer.

For reasons that elude me, the State's Attorney for Charles County MD thought this warranted filing a juvenile petition alleging criminal charges against S.K. for violating Maryland's prohibition against distributing child pornography, and the prohibition against distributing "obscene" material to a minor [Maryland Code, Criminal Law §11-207(a)(4) and §11-203(b)(1)(ii) respectively].

"… a person may not knowingly distribute any matter, visual representation, or performance . . . that depicts a minor engaged as a subject in . . . sexual conduct" (defined as "(1) human masturbation; (2) sexual intercourse; or (3) whether alone or with another individual or animal, any touching of or contact with: (i) the genitals, buttocks, or pubic areas of any individual; or (ii) breasts of a female individual") (§11-207);

and

"… a person may not willfully or knowingly display or exhibit to a minor an item: . . . (i) principally made up of an obscene description or depiction of illicit sex; or (ii) that consists of an obscene picture of a nude or partially nude figure" (§11-203)

The juvenile court found S.K. to have been "involved" in criminal activity—that is, that she committed "a delinquent act which would be a crime if committed by an adult." She was then "placed on electronic monitoring until June 9, 2017" and placed on "supervised probation" administered by the Department of Juvenile Services, which was subject to several terms and conditions such as:

  • reporting to the Probation Officer;
  • obtaining permission before changing her home address or leaving the State;
  • permitting the Probation Officer to visit her home;
  • submitting to weekly drug urinalysis;
  • attending and completing anger management class;
  • submitting to a substance abuse assessment and following any recommendations …

All this notwithstanding the fact that the conduct depicted in the video was (a) her own, (b) entirely consensual, and (c) completely legal in Maryland (for anyone 16 years old or older).

S.K. appealed her conviction, but the court upheld it. Relying entirely on the "plain language" of the statutes quoted above, it found that the statutory language does not exempt a minor who is a participant in the sex act being depicted from being a "'person' who is a distributor of child pornography [under 11-207] and a displayer of obscene matter [under 11-203]."  Putting it "more dramatically," the court held that "a minor legally engaged in consensual sexual activity [can] be his or her own pornographer through the act of sexting."

Here, S.K is prosecuted as a "child pornographer" for sexting and, because she is a minor, her actions fell directly within the scope of the statute. … As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.

It's a dreadful result—dreadful for S.K., who now has a criminal record, and dreadful as a matter of principle. According to the court, over 18% of middle and high schoolers in Maryland report having sent or received sexually explicit material, and singling out S.K. for special punishment seems cruel to me.  Furthermore, as the lone dissenting judge (Hotten) pointed out, these statutes are clearly designed for the dual purpose of "addressing child pornography trafficking and preventing the sexual exploitation and abuse of minors"—neither of which is remotely implicated on these facts.

To be fair, the court itself clearly indicated that it felt hamstrung by the statutory language, and that the Maryland legislature should amend the relevant statutes to remove the prospect of criminal liability in circumstances like these:

"We do not find any ambiguity in this text and, therefore it is our duty to interpret the law as written and apply its plain meaning to the facts before us. In affirming this adjudication, however, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography…. Although the majority of states have passed legislation to amend their child pornography statute relative to sexting, Maryland is one of twenty-one states that have not passed any such legislation and thus permit teenagers to be charged under the child pornography statute….  In response to this case, legislation was introduced in the 2019 Legislative Session that was not passed but in light of these policy concerns, such legislation ought to be considered by the General Assembly in the future."

And speaking of "plain meaning," the finding by the juvenile court that S.K. was "involved in a delinquent act which would be a crime if it were committed by an adult" seems clearly wrong, just on semantic grounds:  if S.K. were an adult, a video of her own sexual act would not constitute "child pornography" (obviously—because it would depict adult conduct), and therefore she would not be criminally liable for distributing it to others.

The only good news for S.K. in all this is that she was not ordered to register as a sex offender with the Maryland Sex Offender Registry.  Although the criminal activity she was found to have engaged in ordinarily requires registration (and all of the attendant collateral disabilities regarding housing, movement, employment, etc. that attend classification as a "sex offender"), Maryland (thankfully) permits juvenile court judges to forego the requirement for juveniles. That would really have ruined her life, for no good reason at all.

Hopefully, the Maryland legislature will clear this up—if S.K. were the daughter of a legislator, my guess is they'd get right on this.

[h/t to Paul Levy for calling my attention to this case]

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    1. Not right now, let me get a magnifying glass first.

      1. That’s a mirror, not a magnifying glass – no wonder you can’t find what you were looking for.

        1. Grab some tweezers so you don’t drop it.

  1. Sometimes I think judges are a bunch of drunken monkeys with power tools. We have a first amendment, we have anti-child porn laws, and tens of thousands of Japanese-Americans gave their freedom to show how the two can be reconciled, but judges still have to fuck it all up.

    1. 12,
      But in this case, doesn’t it seem clear that it’s the elected legislature who passed a dumb law? The court seems to have had no discretion . . . and I think you’ve made prior posts that indicate discomfort with judges who ignore the law. A very very perverse result, alas.

      One hopes that if, indeed, the law is modified, it will be retroactive, which would allow affected people to petition to clear their record.

      1. Yes, the legislatures passed a dumb law. But the first amendment is supposed to protect people from dumb laws.

        1. Just because the first amendment says “Congress shall pass no law…” is no reason to assume that Congress can’t pass any laws to abridge people’s freedom of speech and of the press. The OBVIOUSLY didn’t mean pornography would be allowed.

          The logical reasoning behind the prohibition of child porn is that A) there’s no way to make it without violating the law, because statutory rape, and B) people who see it are invariably drawn to make their own. So, if we concede an inch on either of these two premises, child porn (by which I mean REAL child porn… porn with children in it) comes under the 1A.

          Yes, it’s dumb, but it’s what we have.

          1. Perhaps my reference to Japanese Americans was too subtle. There’s a perfectly reasonable framework here. When judges fucked up the Koremtasu case, they created the doctrine of strict scrutiny, which judges like to use as a magic formula to make constitutional cases go away. But it has a perfectly reasonable application here: Preventing the exploitation of children is a compelling governmental interest, so sane judges would have created a framework where laws banning child porn would have to be narrowly tailored to preventing the exploitation of children. Instead they created first amendment exceptions, which in this case are being used to convict an innocent child of a crime.

            1. “Perhaps my reference to Japanese Americans was too subtle.”

              In the sense that there isn’t one in the comment I replied to?

            2. 12,
              Re “Korematsu”
              “…We have a first amendment, we have anti-child porn laws, and tens of thousands of Japanese-Americans gave their freedom to show how the two can be reconciled, but judges still have to fuck it all up.”
              Korematsu = anti-child porn case???????????????

              To paraphrase Inigo from “The Princess Bride,” ‘ I do not think that case means what you think it means.’

        2. Then perhaps S.K. should have argued to the court that her first amendment rights were being violated? She does not appear to have done so.

          1. Pretty sure her lawyer recognized that as a loser. Trying to get a child-porn law overthrown for violating the 1A? Not in this America.

            1. At least, not until the gun nuts’ theory of constitutional interpretation earns respect.

        3. The opinion specifically discusses the First Amendment in the context of New York v. Ferber, which the court uses as a guide for its ruling.

          If you took a couple of minutes and the read the actual legal opinions you might be less confused about how everything works.

          1. I read that. I find it unconvincing as applied to this case.

            NY v. Feber basically held that the state has a compelling interest to prevent exploitation of minors, and that overrides the First Amendment interest in distributing child pornography.

            But that, IMO, does not apply to something created by the child herself. It is hard to see how she exploited herself in any way. Stupid, yes. Exploting, no.

            (The dissent took a similar approach, but did it through statutory interpretation.)

            1. ” It is hard to see how she exploited herself in any way.”

              Depends on how widely distributed the image(s) got. You make it and send it to one person, who deletes it, you’ve got creation and distribution but not a lot of harm. But once it gets beyond a few dozen, you start to get the possibility of it joining the world, where it can be duplicated and distributed by people who would fall under the “exploitation” banner. For example, if the FBI got their hands on it, they might use it to run a dark-web site and load malware on unsuspecting users’ computers to identify them. Or Joe Perv might use them to trade for images that Fred Perv has, and then Fred Perv might use them to trade for…

              Images of underage people having sex have value because some people want them. The value is magnified because the government says you can’t have them, so the people who want them anyway have to deal elude the law-enforcement agencies to get it. In other words, the government is subsidizing child-porn producers and distributors by keeping prices high.

  2. I’m puzzled as to what eludes the author about this case. S.K. violated Shariah–the video itself is evidence of her “crime.” There’s no question of her “guilt” or ambiguity in the case. The only way to put a stop to outcomes like this is to repeal Shariah laws, and there’s no way that’s ever going to happen. If a few young women have to have their lives ruined so that a society run by crazed religious fanatics can pretend that people are children until they turn 18, that’s a price that the crazed religious fanatics are prepared to pay.

  3. Indeed. I don’t see where the judges had much discretion in this matter. The fault belongs first to the legislators who passed an overbroad kiddie-porn law, doubtless because they were Thinking Of The Children; second, to the State’s Attorney for Charles County, who chose to file charges, and whom I suspect of aspiring to higher office; and ultimately, to the voters of Maryland, who’re easily stampeded by tales of an epidemic of child exploitation, and are happy to see the book thrown at accused offenders, at least until it’s their own kid who comes into the crosshairs of ambitious politicians. In which, of course, they’re not all that different from the voters of 49 other states…

  4. That video will haunt her more than her “criminal record”, and will be out there forever. Her record, on the other hand, will be sealed, and no one will know who “S.K.” is. Hopefully this will dissuade children from making the same error.

    1. Because tons of 16 year olds pay attention to the proceedings in juvenile court.

    2. That video will haunt her more than her “criminal record”,

      Why?

    3. The video won’t show up in a background check. The criminal record will.

      (you do realize the internet is full of similar videos already?)

  5. That’s a very mealy-mouthed opinion. If the judges really felt constrained—unusual among judges—by the statute, they should have written, “It is a monstrous injustice which we perpetrate today. The legislators and the prosecutor who force this decision on us should be ashamed and embarrassed.” That they didn’t speak so frankly reflects poorly on them.

  6. The Maryland constitution’s Declaration of Rights section mentions several relevant rights:

    Article 10 (freedom of speech).

    Article 40 (freedom to speak, write, and publish).

    Article 47a (a victim of crime to be treated with dignity, respect, and sensitivity during all phases of the criminal justice process).

    So far as I can tell, these articles establish enforceable constitutional rights.

    The highest court in the state should have the discretion to apply these rights to this case. But I don’t see these mentioned in the opinion, so maybe the attorneys didn’t make the argument.

  7. And speaking of “plain meaning,” the finding by the juvenile court that S.K. was “involved in a delinquent act which would be a crime if it were committed by an adult” seems clearly wrong, just on semantic grounds: if S.K. were an adult, a video of her own sexual act would not constitute “child pornography” (obviously—because it would depict adult conduct), and therefore she would not be criminally liable for distributing it to others.

    Not logical, Captain.

    Assuming for the sake of argument that Maryland law defines adult = not minor, and vice versa, for all relevant purposes, we are still talking about two different events at two different times.

    1. the sexual activity and
    2. the sexting of that activity

    It is perfectly possible for an adult to distribute a representation material which was created when she was not an adult. If she had, as an adult, sexted material created when she was a minor, she would indeed have been “involved in a delinquent act which would be a crime if it were committed by an adult.” Because the delinquent act is the sexting. Not the sex.

    Thus the juvenile court’s finding was not internally inconsistent.

    Seems to me that nobody has come up with a good explanation as to why the court was wrong in law – just arguments as to why the law is poorly worded. So unless you’re one of those folk who believe that beneath every judge’s shirt there is a body hugging blue tunic with a big red S on it, permitting the judge to right all wrongs as he pleases, it’s up to the legislature to solve.

    Though prior to it getting to court, one might wonder why the prosecutors thought it worthwhile to proceed.

    1. Lee,
      Your last sentence is the most on-point. What the heck was the prosecution thinking in this case? Their decision(s) seem beyond vindictive.

      1. Prosecutors are always looking for an easy win to pump p their conviction rates.

        1. Also, State’s Attorney is apparently an elected office. That means that in his next re-election campaign, the incumbent can use this case to show how tough he is on “child sex trafficking.”

    2. ” nobody has come up with a good explanation as to why the court was wrong in law – just arguments as to why the law is poorly worded.”

      It’s a fair question of whether courts should enforce laws exactly as written, or whether they should account for drafting errors that find their way into print. If you accept that courts should give effect to the law the legislature intended to pass… ignoring things like misspellings and punctuation errors… then looking at the purpose of the law and asking “is this the type of case they meant to criminalize” expands beyond just prosecutorial discretion to judicial, as well. On the other hand, if you believe that courts are bound by whatever the legislature publishes, then the court has no choice. The next step is to request executive clemency when a law is enforced as written, but wrongly. That’s what executive clemency is for.

    3. Seems to me that nobody has come up with a good explanation as to why the court was wrong in law – just arguments as to why the law is poorly worded.

      If a law is poorly worded, then there’s ambiguity, and if there’s ambiguity, then a judge isn’t compelled to rule the way he did. And if he isn’t compelled to rule the way he did, then he should not have ruled in a way that leads to an absurd result. Absurd results are wrong.

      1. If a law is poorly worded, then there’s ambiguity

        Only if the aspect of the wording which merits the description “poorly” relates to ambiguity.

        “New Zealand is an island” is poorly worded, but not ambiguous.

        And if he isn’t compelled to rule the way he did, then he should not have ruled in a way that leads to an absurd result. Absurd results are wrong.

        Let us hope no one ever nominates you for a judicial post. We have quite enough “absurdity = anything I don’t like” merchants already. I don’t like the result either, but it’s certainly not absurd.

  8. What strikes me as odd here is, the one who created the tape is being prosecuted, but clearly they were not the one who sent it to make the rounds in the school.

    Who did that, and why are they not being prosecuted?

    1. “Who did that, and why are they not being prosecuted?”

      The federal statute has an out in it for materials that are reported to the authorities. Maybe the state one does, too, and that’s how it found its way to the school resource officer?

  9. The child porn laws were enacted to protect children from sexual predators. Child porn generally involves pre-teens. Sexting by minors should be dealt with by parents and not the courts. Kids do stupid stuff, always have and always will.

    1. No, there’s overlap. What do you do if your kid takes naughty pictures, shares them with someone who isn’t trustworthy, and then the sexual predators get ahold of them and start distributing them?

      How about when a sexual predator goes on a social media site and pretends to be 16, and gets other 16-year-olds to send in their noodz? And also the 15-year-olds, and the 14-year-olds, and the…

      1. What do you do if your kid takes naughty pictures, shares them with someone who isn’t trustworthy, and then the sexual predators get ahold of them and start distributing them?

        Prosecute the sexual predators for possession and distribution?

        How about when a sexual predator goes on a social media site and pretends to be 16, and gets other 16-year-olds to send in their noodz? And also the 15-year-olds, and the 14-year-olds, and the…

        Same answer?

  10. ” if S.K. were an adult, a video of her own sexual act would not constitute “child pornography” (obviously—because it would depict adult conduct), and therefore she would not be criminally liable for distributing it to others.”

    Unless her friends were still minors, in which case she’d still have liability.

    The problem arises from the conflation of “minor” and “child” as applied to pornography, a problem shared by the federal statute. (and the fact that the child pornography statutes were drafted in a time when average teenagers didn’t have access to the tools to create and distribute pornography featuring themselves.)

    1. Polaroids.

      1. Polaroids were expensive, and average teenagers are poor. (and, of course, copying a Polaroid is… not quite as easy as copying digital files.)

  11. How should a court treat a case where the criminal and the victim are the same person?

    1. Before 1961, Suicide was illegal in the UK. People who attempted suicide (and failed) could then be tried and imprisoned.

      1. Suicides can have victims besides the obvious. The folks who fling themselves off of tall building endanger people walking below. The folks who throw themselves in front of trains make people late for work. The folks who try to shoot themselves sometimes miss, and they sometimes leave a weapon where a child might be the first to find them.

  12. At least she wasn’t charged as an adult.

      1. I get that this case doesn’t seem like the vignette of “exploitation” that the legislature probably had in their minds when they passed this law. But I haven’t seen any concrete proposals for changes to the law that draw a better line.

        1. Redefine “child” to mean “child” rather than “minor” in the child-porn statutes that already exist. Then, create a new crime that consists of commercial exploitation of self-made pornography where “I’m the victim and the offender at the same time” is a complete defense.

  13. “if S.K. were an adult, a video of her own sexual act would not constitute “child pornography” (obviously—because it would depict adult conduct), and therefore she would not be criminally liable for distributing it to others.”

    Just to demonstrate why this is wrong, what if the picture was taken while she was a minor but then she only distributed it once she was an adult. Still a crime, yes? It’s not “would the video have been of an adult” that would’ve mattered, it still was a video of a minor performing a sex act.

    1. If S.K. were to pass that magical 18th birthday, she’d still be a criminal for distributing the image to her friends of 16 and 17 years of age because “… a person may not willfully or knowingly display or exhibit to a minor an item: . . . (i) principally made up of an obscene description or depiction of illicit sex; or (ii) that consists of an obscene picture of a nude or partially nude figure” (§11-203)

  14. The MD legislature is too busy paying homage to violent offenders, I mean those “judicially involved” and tilting at anti-Trump windmills to do anything useful. Also taking tax dollars and redistributing it to public unions. Dont get your hopes up that anything will get done.

  15. This was about the creepiest thing a prosecutor ever did.

  16. People in Congress want laws against bad things like discrimination and violence against women. But the constitution prohibits prohibiting such things directly. So they come up with a jurisdictional hook and pro unit it where they can.

    Why shouldn’t states do the same? They want to prohibit bad things like pornography and sodomy. But the courts say they can’t do it directly. So why shouldn’t they prohibit it whereever they have a jurisdictional hook?

    Compared to some of the things the federal government has used as jurisdictional hooks for things that it has no business prohibiting directly – for example, sentencing a person to death because of a paint scratch incidental to a murder that was otherwise none of the federal government’s business supposedly had a tiny effect on interstate commerce – this one seems pretty trivial.

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