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.

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]