Maryland Court Upholds Child Porn Conviction Who Sexted Her Own Video

Another nonsense ruling on an issue that doesn't belong in court to begin with.

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.

(…)

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

FILED UNDER: Crime, Law and the Courts, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Paul L. says:

    She is a child pornographer and must be punished to not undermine the Rule of Law.

    And criticizing Judges undermines the Rule of Law and the Judicial system.

    2
    16
  2. CSK says:

    @Paul L.: Indeed. I suggest hanging, drawing, and quartering.

  3. de stijl says:

    In reading through this it looks one of her friends distributed the video without consent.

    Why was that person not charged / prosecuted?

    That is what instigated this mess.

  4. Kathy says:

    These laws are ridiculous, and prosecutors ought not to waste their time even charging these so-called offenders. They’re rather normal teens doing much what teens do. If sex between teenagers is legal, then talking about it, taking video of it, and sharing that with friends has no rational reason to be illegal; certainly not on the level of a major felony like child pornography.

  5. Gustopher says:

    From one of the quoted articles:

    By then, too, one of the teens had shared the video with other students, court files show.

    If anyone is going to be charged, it should be that one.

    Let’s just assume that filming yourself doing naughty things and sharing the video with friends is poor judgement (some people are exhibitionists, etc., but generally…) — criminalizing poor decisions that harm no one else is just a bad thing in general. Particularly for kids, as part of growing up is making lots of bad decisions.

    The friend who then shared it to others… he/she was harming the original kid. Not sure prosecuting is the right thing there either, but it’s more in line with the notion of justice. Less out of line.

    ——

    As as aside, I remain surprised that we have given teenagers cameras, and have not be overwhelmed with a massive amount of self-produced child porn on every corner of the internet, as social networks fail to keep up with it. It just seems like what would happen.

    Either I am wrong about people’s behavior, or social networks and websites are better at policing content that the proliferation of Nazis on the internet would suggest.

  6. de stijl says:

    @Paul L.:

    I’m confronted with Poe’s law.

    If what you posted was your true feeling, them you are a effed up human being with zero empathy or compassion. You might benefit from looking within and trying to better yourself by consciously devaluing certain trigger points and just let what is be.

    If you were mocking / mimicking a POV, you did a stand-up job.

  7. Gustopher says:

    @Paul L.: When you post crazy stuff all the time, no one can tell when you’re joking.

    I *think* you’re joking here.

    Also, I think the appeals court judges ruled correctly: This was a violation of a constitutionally valid law, but hey, this law is really having unintended consequences and should be fixed by the legislature.

  8. mattbernius says:

    @de stijl:

    In reading through this it looks one of her friends distributed the video without consent.

    Why was that person not charged / prosecuted?

    That’s exactly the same question that I have had in this case. I don’t understand how the student who distributed the video wasn’t charged with anything — especially given the prosecutors decision to move against the plaintiff.

    Or if prosecutors exercised their discretion in that case, why not for the plaintiff?

    As far as the Maryland Court of Appeals, I honestly (and unfortunately) don’t think they got this wrong…

    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.

    Without getting into the issue of judicial activism, my understanding is that the court here is deciding whether or not the (poorly written) law was properly applied – not whether or not the law itself is correct. The remedy here is with the legislature rather than the judiciary. Which is what the judiciary wrote.

    Correct me if I’m wrong Doug, but I don’t think the state court of appeals can strike down or append statute can they? If they had struck down the conviction that would have only applied to this case (which while it’s precedent, wouldn’t impact any other similar convictions within the State).

    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.

    I agree with this position. Unfortunately that isn’t what current statutes say.

  9. Paul L. says:

    Just repeating the Rule of Law talking point used during the Mueller investigation until it was closed by Trump blackmailing using previous administrations’ dirt.

    20
  10. de stijl says:

    @Gustopher:

    Yeah. I enjoy how much of the opinion was:

    “Hey! You guys really boxed us in here and our ruling was based on your poorly designed law. You might want to fix that. Hint … hint.”

  11. de stijl says:

    @Paul L.:

    I’m not a doctor, but it appears that your brain is misfiring. That was gibberish apparently intended to be provocative.

    Do with that what you will.

  12. Bill says:

    @CSK:

    Indeed. I suggest hanging, drawing, and quartering.

    That would be too humane. I suggest forced watching of a Gilligan’s Island marathon or having to proof-read one of my ebooks for publication. My sometimes cancer scrambled brain produces gems like ‘He walked into a elephant.’ Now imagine a 100,000 word ebook to proof….

  13. @mattbernius:

    I think the court got the law right. That’s the problem. This is yet another situation where the law is an ass

    At the same time, the prosecutor could have also exercised discretion here and not pursued these charges.

  14. CSK says:

    @Paul L.:

    “…Trump blackmailing using previous administrations’ dirt.”

    The above makes absolutely no sense whatsoever. Please clarify.

  15. Paul L. says:

    @CSK:
    Trump has the Fast and Furious gunwalking and IRS targeting the Teabaggers emails including Mueller and Obama that Congress subpoenaed.

    To: U.S. Attorney for the District of Arizona Dennis K. Burke.
    From: Attorney General Eric Holder
    CC: Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny A. Breuer, acting ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Director of the Federal Bureau of Investigation Robert Mueller. President Barack Obama
    Date: October 27, 2009
    Subject: Operation Fast and Furious TOP SECRET//SPECIAL ACCESS REQUIRED
    I had a meeting with the President about using the “gunwalking” tactic we discussed to catch Mexican Drug cartel gunrunners. He approves that this program is the best course of action to covertly fight the NRA. He does not want to pick a fight with the NRA until he is safely reelected, Even if no one is convicted, it will help bolster the talking point that 90 percent of Mexico’s recovered crime guns come from the U.S.

  16. Hal_10000 says:

    The court may be right that the law makes no exception. The people to scream at are the legislators who haven’t fixed this and the prosecutor who decided to bring a case.

  17. Tyrell says:

    I am interested in ideas on how these sort of things can be effectively blocked through some sort of technology or monitoring system.
    At what age should children have cell phones and access to computers? I have seen third graders with cell phones.
    When I was in school this sort of technology did not exist. The closest thing to this sort of activity was some guys who would bring Playboy pages and show them in the bathroom or locker room. Sometimes they got caught and the teachers would take the pages. I do not know what they did with them.

    2
    2
  18. mattbernius says:

    @Doug Mataconis:

    I think the court got the law right. That’s the problem. This is yet another situation where the law is an ass

    Agreed. Is it even in the state court’s purview to reinterpret the law?

    At the same time, the prosecutor could have also exercised discretion here and not pursued these charges.

    Agree, but if our only defense against bad laws is prosecutorial discretion then we are screwed on so many levels.

  19. mattbernius says:

    @Paul L.:
    Off topic, what’s the source of that memo? Just curious. I was trying to google it for context and couldn’t find anything that matches that wording.

  20. Paul L. says:

    @mattbernius:
    Did I state it was real?

  21. mattbernius says:

    @Paul L.:
    Ok, so in other words, like most of your “facts” on climate change, you’re just shit posting. Just wanted to make sure — I keep forgetting to stop giving you the benefit of doubt.

    12
  22. Kathy says:

    @Doug Mataconis:

    At the same time, the prosecutor could have also exercised discretion here and not pursued these charges.

    I wonder why prosecutors don’t do this. Probably they have a quota to fill.

    I favor the Didius Julianus Principle. In 193 CE Julianus bought the throne from the Praetorian Guard, who’d just killed the reigning Roman emperor, Pertinax. 66 days later, Julianus was deposed and executed. He asked “What evil have I done?” before being killed.

    The evil he did is obvious (though others did worse, even if they did not usurp the throne with money, and died of old age). But in many cases of disproportional prosecutions, the question “What evil has the accused done?” or even “What harm has the accused done?” is never asked. worse yet, the question of “what harm does prosecution do to this person, and is it deserved?” isn’t asked either.

    The legal system, all too often, simply moves like an automaton, without thought or care for the consequences.

  23. de stijl says:

    @mattbernius:

    You can’t find a citation because it doesn’t exist.

    If that text does exist elsewhere, it is a place that Google won’t link to: Stormfront, 8chan, weird white power subreddits.

  24. An Interested Party says:

    They’re rather normal teens doing much what teens do. If sex between teenagers is legal, then talking about it, taking video of it, and sharing that with friends has no rational reason to be illegal…

    Ahh, but that’s just it…certain very moral people think it’s wrong for teenagers to have sex…

  25. Mister Bluster says:

    @Tyrell:..Sometimes they got caught and the teachers would take the pages. I do not know what they did with them.

    One day after attending the Bay Road School in Webster NY, grades 4, 5 and 6 (1957 -1959) I was the first one to get on the school bus. I know I suprised the bus driver because I caught him quickly tucking away his copy of Playboy he had been perusing.
    Sitting in the drivers seat! Right in front of the school!

  26. Just nutha ignint cracker says:

    @Doug Mataconis:

    The Judge does not make the Law. It is the People that make the Law. Therefore if a Law is unjust, and if the Judge judges according to the Law, that is justice, even if it is not just. (Paton, Cry2.22.4-5)

    (And for those who are wondering why no one else was prosecuted… DUH! do the math: ask yourself the question just who was the victim who had HIS sensibilities and morals assaulted, and who was the criminal slut?)

  27. Just nutha ignint cracker says:

    “At what age should children have cell phones and access to computers?”
    You’re in luck! Our nation already has a system of agents empowered to decide such matters. They’re called parents.

  28. wr says:

    @Gustopher: ” This was a violation of a constitutionally valid law, but hey, this law is really having unintended consequences and should be fixed by the legislature.”

    Really? I thought that the job of a judge — especially an appeals judge — is not to pick through the laws and make sure that each one is followed to the letter. I thought they were supposed to be finding justice, which this most clearly isn’t.

  29. mattbernius says:

    @wr:
    I could be wrong here, but my understanding is it’s entirely the opposite of that.

    It’s pretty much laid out in the decision:

    The main issue before this Court is whether a minor may be adjudicated delinquent under the current statutory scheme as the “person” who is a distributor of child pornography and a displayer of obscene matter when she is also the minor participant in the sex act. Put more dramatically, can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting?

    This of course leads to broader questions about our criminal justice systems, but the courts focus here was to evaluate whether or not the law applies to the charges at hand not whether or not the law itself is just.

  30. mattbernius says:

    @Doug Mataconis:

    At the same time, the prosecutor could have also exercised discretion here and not pursued these charges.

    Yeah, this definitely feels like a case where discretion would have been warranted (and again, the person who actively distributed the media wasn’t charged*).

    I am curious though if some of this had to do with concerns that if the Prosecutor didn’t bring charges, law enforcement would have pushed for federal charges to have been brought.

    * – @de stijl – on that point, I’m curious to know if law enforcement referred the teen who further distributed the files for prosecution. I’m not sure statute in MD, but in most states prosecutors cannot file charges with out referral from an arresting agency.

  31. DrDaveT says:

    @Paul L.:

    Trump has the Fast and Furious gunwalking and IRS targeting the Teabaggers emails including Mueller and Obama that Congress subpoenaed.

    Tourette’s Syndrome can be treated, Paul.

    More to the point, we’ve explained the facts about the Cincinnati IRS office ‘targeting’ situation at least five times. As Yogi Berra said so often, “You could look it up.” That you continue to think that somehow there was some criminal act involved just shows that you are a born mark. My advice: don’t answer emails that say you’ve already won a prize…

  32. Tyrell says:

    @Mister Bluster: He probably had taken it away from a student. That way he did not have to pay for it.

  33. mattbernius says:

    @Mister Bluster:

    Bay Road School in Webster NY

    I keep forgetting that you got your start round my current part of the world.

  34. Mister Bluster says:

    @mattbernius:..the world is round…
    My dad was born and raised in Danville IL. He met my mom at Danville High School. They got married in 1941. After Pearl harbor he enlisted in the Navy and spent all of WWII in Cincinnati with Naval Public Relations. He and my mom lived in an apartment in Cincy. The war was easier on them than it was for a lot of other families.
    One of his “mates” worked for Eastman Kodak in Rochester NY and got my dad a job there when he was discharged. That’s how my brother and sister and I ended up starting on the shores of Lake Ontario.

  35. Mister Bluster says:

    @Tyrell:..did not have to pay for it
    I couldn’t say what a School Bus driver was paid back then.
    But the first issue of Playboy was 50cent*.

    *No. He was not the first interview.

  36. Gustopher says:

    @mattbernius: I got my start there too, in Irondequoit.

    Beautiful area, so-so people. My family is still there.

  37. mattbernius says:

    @Mister Bluster & @Gustopher: All these RAHchesterians and Western NY’ers*. I got to the area when I went to RIT for undergrad. I kept leaving and coming back. At this point my roots are 20 years deep here.

    * – For all his sins, I’m pretty sure that Eric F is also in (or at least was in) this neck of the woods as well.

  38. Mister Bluster says:

    I lived at 168 Frontenac Heights (IQ as we called it for some reason) and walked to Iroquois School K-2 (’53-’55).
    My dad had a house built in Webster where we lived from 1956 until 1961 when we moved to Danville. My mom had been diagnosed with schizophrenia and he wanted to get closer to family.
    One of my more lasting childhood memories of Rochester is visiting my mom at the State Hospital where she was housed for years at time before the drugs were developed to treat her malady.