Md. high court will weigh if child porn includes ‘sexting’

Maryland’s top court will consider whether a 16-year-old who texted a video of herself engaging in a consensual sexual act with an adult was “involved” in distributing child pornography in violation of state law.

The Court of Appeals will also weigh whether the prohibition on displaying obscene material to a minor applies to text messages, as that form of communication is not expressly included in the law’s list of display methods.

The high court will examine these issues after agreeing last week to hear the appeal of a girl, identified as S.K., found to be involved in distributing child pornography when she texted to her friends the video of herself performing fellatio.

In June, the intermediate Court of Special Appeals upheld the juvenile court’s finding, concluding that Maryland’s prohibition on distributing child pornography applies when a child is both the willing subject and distributor of the material.

But the Court of Special Appeals also held that S.K. could not be deemed involved in displaying the material, because texting is not specifically outlawed under the law’s display prohibition.

S.K.’s attorney, in urging the high court to hear the appeal, said the lower courts read too broadly the child-pornography’s distribution provision at Section 11-207 of the Criminal Law Article.

“Clarification of the scope of Section 11-207 is especially necessary in this age in which teenagers often engage in ‘sexting,’ the practice of sending sexually explicit photographs to each other,” Assistant Maryland Public Defender Claudia A. Cortese wrote to the Court of Appeals.

“The statute was intended to protect minors victimized and exploited in the production of sexually explicit videos and should not be construed to criminalize a minor’s dissemination of her own videotaped consensual acts involving no other minors,” Cortese added. “It is thus up to this Court (of Appeals) to interpret the scope of this statute and determine whether the legislative intent was to authorize the state to prosecute a child engaged in consensual sex as her own photographer.”

The Maryland attorney general’s office, meanwhile, urged the high court to rule displaying obscene material to a minor via text message is illegal, though the law does not expressly mention texting.

“The General Assembly is not required to specify each type of media on which obscene material may be placed,” Assistant Maryland Attorney General Sarah Page Pritzlaff wrote, noting the law does expressly outlaw displays by the similar but less high-tech methods of “photograph” and “videotape.”

“This Court (of Appeals) should review this novel issue to provide guidance not only with respect to the proper interpretation of the statute, but to inform the proper construction of other statutes that allegedly have ‘not kept pace’ with the rapidly changing technological landscape,” Pritzlaff added. “Certainly, there is nothing to indicate that the General Assembly intended to exclude digital videos and other digital media.”

The Court of Appeals will hear arguments in the case early next year and is expected to render its decision by Aug. 31. The case is In Re: S.K., No. 41 September Term 2018.

‘Indisputable interest’

In its controversial 3-0 decision, the Court of Special Appeals held the law against child pornography is “not limited to non-consensual or abusive conduct and it contains no exception when the minor depicted is also the distributor.”

Writing for the appellate panel, Judge Matthew J. Fader stated that “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.”

The appeals court’s reported decision involved interpreting what it called the “unambiguous” Section 11-207(a)(4)(i) of the Criminal Law Article, which bars a “person” from knowingly distributing “any matter, visual representation, or performance … that depicts a minor engaged as a subject in … sexual conduct.”

A 16-year-old girl is clearly a “person,” and S.K. was a “subject” of the video engaged in sexual conduct, the court said.

“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 by the plain language of Section 11-207(a)(4)(i),” Fader wrote.

Though 16-year-old S.K. was old enough, under Maryland law, to consent to the sexual conduct, “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,” Fader added.

S.K. texted the video to a 16-year-old girl and 17-year-old boy with whom S.K. was in a friendly competition to “outdo” each other with their recordings, according to the court’s opinion. When the trio had a falling out, S.K.’s now-former friends reported the video to their school’s resource officer.

The state charged S.K. with distributing child pornography and displaying an obscene item to a minor. Sitting as a juvenile court, the Charles County Circuit Court found S.K. involved in both offenses and placed her on probation with conditions, including that she undergo a psychiatric evaluation.

S.K. sought review by the Court of Special Appeals, which overturned only the displaying offense.

The Court of Special Appeals said Maryland law specifically prohibits displays in a still picture, photograph, book, pamphlet or video game, among other media — but not text message.

“The very specific list of items covered by (the law) has not kept pace with the ways in which obscene images may be displayed to minors,” Fader wrote. “The last addition to that list was ‘video game,’ which the General Assembly added in 2006. For perspective, the first iPhone was released the following year. It is not within our province to expand the coverage of the statute beyond the contours of its unambiguous language.”

Fader was joined in the opinion by Judges Kevin F. Arthur and Raymond G. Thieme Jr., a retired jurist sitting by special assignment.

The Court of Special Appeals rendered its decision in In Re: S.K., No. 617 September Term 2017.