Md. high court considers whether child porn includes ‘sexting’

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ANNAPOLIS – Attorneys for an embattled youngster and the state clashed before Maryland’s top court Friday over whether the girl, then 16, was “involved” in distributing child pornography in violation of state law when she texted a video of herself engaging in a consensual sex act with a man.

The Court of Appeals also grappled in the same case with whether the state’s prohibition on displaying obscene material applies to text messages, as that form of communication is not expressly included in the law’s list of display methods.

The high court delved into “sexting” and child pornography as the judges heard the appeal of the girl, identified in court papers as S.K., who was found to have been involved in the distribution of porn when she texted to two friends a video of herself performing fellatio. Her involvement in displaying obscene materials was overturned because the video was displayed via text message.

Pressing S.K.’s appeal, Assistant Maryland Public Defender Claudia A. Cortese said Maryland’s sanction on distributing child pornography does not apply to a child who is both the subject and the distributor of the outlawed material.

The criminal law specifically distinguishes between the “person” distributing the pornography and the depicted “minor” in an effort to prevent the exploitation of children by adults, Cortese told the court.

“It would be absurd to have the person and the minor be the same person,” she said, adding that the law “does not make the minor a pornographer.”

Assistant Maryland Attorney General Sarah Page Pritzlaff countered that the law’s purpose is not just to prevent exploitation but also to “eradicate child pornography.” Pritzlaff said the statute aims to achieve this goal by prohibiting an underage subject from being a distributor. The law makes no distinction between person and minor, as a minor is defined as a person in the statute, Pritzlaff said.

“The legislature would be shooting itself in the foot” by creating a child pornography exception when the child is also the distributor, she said. “What the General Assembly wants to do is eradicate child pornography.”

But Chief Judge Mary Ellen Barbera seemed unconvinced that a “person” distributing pornography and the “minor” depicted can be identical under the law as written.

“It is a bit of an awkward read,” Barbera said.

The legal travails of the girl started after she texted the video to a 16-year-old girl and a 17-year-old boy with whom she was in friendly competition to “outdo” each other with recordings, according to court papers. 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., who at 16 was of legal age to consent to sexual activity, 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 one that she undergo a psychiatric evaluation.

S.K. sought review by the Court of Special Appeals, which overturned only the displaying offense. The intermediate court said Maryland law specifically prohibits displays in a still picture, photograph, book, pamphlet, videotape, film or recorded telephone message — but not text message.

Appealing that decision, Pritzlaff, the state’s lawyer, told the high court that the intermediate court had read the law too strictly. She said a person would be “hard-pressed” to distinguish a photograph or film from a video sent by text message.

Films today, like texted videos, are digital and involve moving images, Pritzlaff said.

That argument appeared to have the support of Judge Shirley M. Watts, who wondered aloud whether the General Assembly would have intended to prohibit an obscene video but not an obscene video depiction.

Cortese, S.K.’s lawyer, countered that that General Assembly provided a specific list of prohibited displays that the high court may not expand.

The legislature could have included a “catch-all” phrase that encompassed videos sent by text message but did not, Cortese added.

The General Assembly “knows how to do it,” she said. “The legislature has listed these things intentionally.”

Judge Robert N. McDonald asked whether a text message could be regarded as a recorded telephone message, thus falling within the law’s purview.

No, Cortese responded, saying that “recorded message” refers to a voicemail, not a text.

Cortese added that a short, texted video can also be distinguished from “film,” which refers to the photographic material or is another word for movie.

“The ordinary and popularly understood meaning of ‘movie’ includes a plot line,” which the texted video lacked, Cortese said.

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