The highest court in Maryland has upheld the conviction of a Maryland teenager who used her smartphone to record a video of herself performing a sexually explicit act and sent it to a small group of friends on charges of creating and distributing child pornography:
Maryland’s child pornography laws apply when the child is both the subject and sender of sexually explicit material, the state’s highest court ruled Wednesday, in a case testing how to treat teenagers who voluntarily self-produce and share their own images.
The case before the Maryland Court of Appeals began with a teenage girl who texted friends a one-minute graphic video of herself, and it comes as law enforcement officials, judges and legislators throughout the country are struggling with how to reconcile laws crafted before the era of cellphone videos with evolving technology and teen behavior.
The question for the court, as Judge Joseph M. Getty wrote for the majority: “Can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting?”
The high court’s 6-to-1 ruling upholds an earlier decision from the state’s Court of Special Appeals — which is one step below the top court — in finding that state lawmakers did not include exceptions in the law for consensual sex or for self-produced child pornography.
But the court also encouraged the Maryland General Assembly to consider changing the law.
“This case presents a unique challenge. On the one hand, there is no question that the State has an overwhelming interest in preventing the spread of child pornography,” the court said in a 35-page opinion. “On the other hand,” the teen “albeit unwisely, engaged in the same behavior as many of her peers.”
Even as the court found the law “all encompassing” to include minors, the judges said that “we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography” and it urged the General Assembly to consider such legislation.
The lone dissenter, Judge Michele D. Hotten, wrote that the law was intended to “protect children from exploitation and abuse,” not to criminalize consensual sex between minors.
The teen was “not being exploited by someone else,” Hotten wrote. “The General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution.”
The facts of this particular case are similar to those of other cases that have arisen around the country in the age of smartphones:
In the Maryland case the then-16-year-old sent her one-minute video to the three-person group text chain.
A few months later, the group “fell off as friends,” according to court records, and the students who received the text shared a copy with their school resource officer from the Charles County Sheriff’s Office. By then, too, one of the teens had shared the video with other students, court files show.
The only teen charged was the teen who made the video of herself, according to the county prosecutor, setting off the chain of court action now awaiting a ruling from the Maryland Court of Appeals.
Prosecutors in some states have charged teens with possession or distribution of child pornography. In a Fairfax County case, three teenage boys were found guilty in 2013 of unlawfully producing videos of teen girls. They initially faced more serious child pornography charges.
State legislators have also rewritten laws to impose less severe punishments that account for the immaturity of teens. The Virginia Senate last year passed a bill that would have kept teens from being labeled as sex offenders for willingly sharing nude images with each other. The bill that would have made sexting among minors a misdemeanor stalled in a House committee.
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In the Maryland case, the one-minute video depicted the girl performing a sex act on an unidentified male. The girl, who is referred to by her initials in court records, texted the digital file to the cellphones of another 16-year-old girl and a 17-year-old boy in October 2016.
The teen who originally made the video was charged in juvenile court, where hertwo friends and the school resource officer testified, court records show.
At her initial hearing, the prosecutor said the state was not “trying to prove a point in going forward with this case,” but that “the state believes that the respondent is in need of some guidance, rehabilitation for something deeper” and “is just trying to help her.”
Because her case on the distribution of child pornography was in juvenile court, the teen never faced a mandatory sentence orthe possibility of having to register as a sex offender. She was put on probation and referred for a mental health evaluation.
She and her family appealed the court decision, and judges at theintermediate appeals court largely upheld theinitial ruling.
The Court of Special Appeals — which is one step below the top Maryland Court of Appeals — sided with the state in ruling that lawmakers had not included exceptions for consensual sex or for self-produced child pornography.
“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,” wrote Chief Judge Matthew Fader, who was joined in the decision by judges Kevin F. Arthur and Raymond G. Thieme Jr.
“Unless and until the General Assembly exempts from the reach of the statute minors who distribute materials depicting their own consensual sexual conduct, that conduct is prohibited,’ the judges wrote.
In the same ruling, however, the court rejected the finding that the teen was responsible for “displaying obscene material” to a minor because it said the law does not specifically apply to the technology she used — a digital video file — to share the material.
This is not an unfamiliar tale. Ever since cell phones and smartphones obtained the ability to take pictures, and later video, and share them with others, the people who use those devices have used them to share explicit photos and videos. The fact that smartphones are now as common a teenager accessory as the Sony Walkman was some 30 years ago, combined with teenage sexual precociousness and naivete that goes back long before the development of high technology, meant that this would inevitably include teenagers sending explicit photos to each other. ‘Sexting,’ as it has come to be called, has come to be the latest version of panic about what kids are doing today and the response by parents, school authorities, and law enforcement has consisted largely of panic, overreaction, and the kind of charges that could effectively ruin a teenager’s adult life before it even begins.
Several years ago in Virginia, for example, a teenage boy residing in the Washington, D.C. suburb was charged with production and distribution of child pornography due to a picture that he sent to his girlfriend which was discovered by her parents. For whatever reason, the girl involved in this particular incident wasn’t charged even though she had sent a similarly explicit photo. In any case, while the charges were pending prosecutors in Prince William County made national news when they sought to obtain a court order to allow them to give the defendant an injection and take pictures of his genitals for “evidence” in the upcoming trial. After a media firestorm, the request was dropped and the case against the defendant was eventually resolved in a manner that would not result in serious charges on his record following into adulthood. His story, though, is just an example of the ham-fisted way that these cases have been handled. In 2015, there was a similar case arising out of Illinois, that resulted in a group of teenagers being charged with distribution and possession of child pornography under circumstances not dissimilar from the Maryland case. For several years, there have been discussions about changing the way the law handles these cases, and some states have changed their laws, but many have not and we end up with cases like this one.
As Elizabeth Nolan Brown noted back in 2015, the laws against child pornography exist to prevent the sexual exploitation of children by adults. They carry with them harsh sentences and the prospect of being branded as a sex offender of life because of the belief that it is necessary to do this in order to protect children from those who would put them in danger. That’s not what happened in this case, or in any of the other teen “sexting” cases that make the news every now and then. It is admittedly stupid for teens to take photos and videos like this and share them, even with one person, and it should be the responsibility of parents and school authorities to educate children about the consequences of combining technology with normal teenage sexual curiosity. Absent a situation where someone was actually abused, or where photos or video were taken without consent, though, this just doesn’t seem to be something that can or should be handled by law enforcement.
Here’s the opinion:
In Re S.K. by Doug Mataconis on Scribd
