Issues to Watch

Is Sexting Child Porn?  Maryland Court of Appeals Set to Decide this Term.


* Shannon Hayden

Legislatures and courts alike have had trouble keeping up with the ever-evolving technological advances in today’s modern world.  Vivek Wadhwa, Laws and Ethics Can’t Keep Pace with Technology, MIT Tech. Rev. (Apr. 15, 2014), https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-technology/.  Technology is developing more rapidly than before, causing gaps between the times that new technology emerges and when laws are actually made to address these changes.  Wadhwa, supra.

In Maryland, this delay in the development of the law has led to an issue that courts around the country are also facing: whether minors, who consensually “sext” other minors by sending photos and videos depicting sexual conduct, are involved in distributing child pornography in violation of state law.  See In re S.K., 186 A.3d 181 (Md. Ct. Spec. App. 2018); see also State v. Gray, 402 P.3d 254 (2017) (upholding the child pornography conviction of a seventeen-year-old boy who sent unsolicited images of his genitals to an adult woman); Teresa Nelson, Minnesota Prosecutor Charges Sexting Teenage Girl with Child Pornography, Am. Civil Liberties Union (Jan. 5, 2018, 11:45 PM), https://www.aclu.org/blog/juvenile-justice/minnesota-prosecutor-charges-sexting-teenage-girl-child-pornography.  The Maryland Court of Appeals will decide on this issue next year when it hears arguments in the case of In re S.K.

In re S.K. stems from a juvenile court’s decision to hold S.K., a minor girl, criminally liable for child pornography after she text-messaged her friends a sexual video of herself.  See In re S.K., supra.  S.K., then sixteen years old, sent a text message “containing an approximately one-minute-long digital video of herself performing fellatio on a presumably-adult male” to her trusted friends A.T. and K.S., a sixteen-year old girl and a seventeen-year old boy, respectively.  In re S.K., 186 A.3d at 184.  The video was meant to be a joke as the friends “regularly exchanged ‘silly’ videos and attempted to ‘outdo’ one another.”  Id.  However, two months later, the group had a falling out and K.S. and A.T. reported the incident and shared a copy of the video with their school resource officer, Eugene Caballero of the Charles County Sheriff’s Office.  Id.  Additionally, K.S. supposedly shared the private video with other students as well.  Id.

After Officer Caballero met with S.K., the State charged her with:

(1) filming a minor engaging in sexual conduct in violation of § 11–207(a)(2) of the Criminal Law Article (2012 Repl.), (2) distributing child pornography in violation of § 11–207(a)(4) of the Criminal Law Article, and (3) displaying an obscene item to a minor in violation of § 11–203(b)(1)(ii) of the Criminal Law Article.

Id.  The Circuit Court for Charles County, sitting as a juvenile court, “granted S.K.’s motion for acquittal as to the offense of filming a minor engaged in sexual conduct, but found S.K. involved in distributing child pornography and displaying an obscene item to a minor.”  Id.  Further, S.K. was found delinquent and placed on probation and ordered to undergo a psychiatric evaluation. Id.  S.K. appealed.  Id.

The Maryland Court of Special Appeals affirmed the juvenile court’s finding in part, “that Maryland’s prohibition on distributing child pornography applies when a child is both the willing subject and distributor of the material.”  Steve Lash, Md. High Court Will Weigh if Child Porn Includes ‘Sexting,Daily Rec. (Oct. 15, 2018), https://thedailyrecord-com.proxy-bl.researchport.umd.edu/2018/10/15/court-of-appeals-child-pornography-sexting/.  S.K. argued that she was not “engaged as a subject” in the video because she was a willing participant; therefore, her conduct did not fall within the statute because the statute was intended for minors who are unable to consent or were forced to partake.  In re S.K., 186 A.3d at 185.

The statute prohibits a “person” from “knowingly distribut[ing]” “any matter, visual representation, or performance . . . that depicts a minor engaged as a subject in . . . sexual conduct.”  Md. Code Ann., Crim. Law § 11-207(a)(4)(i) (West 2018).  The Court rejected S.K.’s argument by focusing on the plain meaning of the statute and its legislative history and concluded the language only requires “that a minor appears as a participant in, or object of sexual conduct . . . not that there was an absence of lawful consent.”  In re S.K., 186 A.3d at 188.

However, the Court of Special Appeals vacated the juvenile court’s ruling that S.K. was “involved in displaying an obscene item to a minor under Section 11-203 of the Criminal Law Article.”  Id. at 198.  Section 11-203 states, in relevant part, “[a] person may not willfully or knowingly display or exhibit to a minor an item . . . that consists of an obscene picture of a nude or partially nude figure.”  Md. Code Ann. Crim. Law § 11-203(b)(1)(ii) (West 2018).  Further, under § 11-203(a)(4)(i–iv), “item” is defined as a “(i) still picture or photograph; (ii) book, pocket book, pamphlet, or magazine; (iii) videodisc, videotape, video game, film, or computer disc; or (iv) recorded telephone message.”  Id. § 11-203(a)(4)(i–iv).  The Court of Special Appeals concluded that the digital file that S.K. sent to her friends was not an “item” as defined in the statute.  In re S.K., 186 A.3d at 195.

The Court again looked to the plain meaning of the statute, noting that the General Assembly did not leave the word “item” undefined in the statute.  Id. at 196.  In doing so, the Court concluded “to be covered, the digital video file S.K. transmitted must be fairly included in one of the four categories of things that the General Assembly has defined as constituting an ‘item’ for purposes of this statute.”  Id.  The State argued that the digital video should be included in the “film” category.  Id.  However, the Court rejected this argument reasoning that in the statute, “‘film’ is paired within its category with the terms ‘videodisc,’ ‘videotape,’ ‘video game,’ and ‘computer disc,’” and the Court interpreted the language in that context.  Id. at 196–97.  The Court determined that “‘film,’ listed as part of this grouping, could only be a reference to film as a physical medium that can contain content, and not as a video itself.”  Id. at 197.   The Court relied on the fact that three of the four other items refer to “other types of physical media,” and that if the term “film” was meant to mean “motion picture” it would render the terms “videotape” and “videodisc” “superfluous.”  Id.

Consequently, the Court of Special Appeals vacated the juvenile court’s finding that S.K. violated Section 11-203 of the Criminal Law Article and remanded the case.  Id. at 198.  An appeal followed, and the Court of Appeals will hear arguments in the case early next year, with a decision to be rendered by August 31, 2019.  Lash, supra.

It may be unclear how the Court of Appeals will rule in S.K.’s case, but it has brought awareness to the Maryland General Assembly’s failure to amend laws as technology evolves.  As Judge Fader, writing for the Court of Special Appeals, points out “[t]he very specific list of ‘items’ covered by § 11–203 has not kept pace with the ways in which obscene images may be displayed to minors.  The last addition to that list was ‘video game,’ which the General Assembly added in 2006.”  In re S.K., 186 A.3d 181,198 (Md. Ct. Spec. App. 2018).  2006 was a year before the first iPhone was released and long before apps like Snapchat and Instagram became popular.  Annys Shin, When Apple Introduced the iPhone, Wash. Post (June 22, 2017), https://www.washingtonpost.com/lifestyle/magazine/when-apple-introduced-the-iphone/2017/06/20/7f2e968a-3cde-11e7-9e48-c4f199710b69_story.html?utm_term=.16ed7f52c639; see also Casey Johnston, Snapchat, Instagram Stories, and the Internet of Forgetting, New Yorker (Aug. 5, 2016), https://www.newyorker.com/tech/annals-of-technology/snapchat-instagram-stories-and-the-internet-of-forgetting.  Times have changed, and the statute should be amended to reflect these changes, so that minors in situations similar to S.K.’s will not be held criminally accountable.  Today, sexting is so prevalent among the general population that it was added to the Oxford English Dictionary in 2015.  Katie Collins, ‘Sexting,’ ‘Vaping’ and ‘Photobombing’ Reach Oxford English Dictionary, Wired (June 25, 2015), https://www.wired.co.uk/article/sexting-vaping-photobombing-new-words-oxford-english-dictionary.  Sexting has become normalized in today’s society with many high school aged students admitting to sexting by taking either photos or videos and sending them to another person.  Robert Weiss, Teen Sexting vs. Child Pornography, Psychol. Today (Nov. 18, 2015), https://www.psychologytoday.com/us/blog/love-and-sex-in-the-digital-age/201511/teen-sexting-vs-child-pornography (discussing how “teen sexting is widespread and engaged in by high function, emotionally healthy kids as well as kids with problems”).

For these reasons, it is unfair to hold minors criminally liable under child pornography laws for engaging in consensual sexting.  See Collins, supra; Weiss, supra.  Child pornography laws are in place to protect children, but in S.K.’s case, and others likes hers, these laws will potentially cause more harm than good because this harm could follow them into their adult lives if their convictions are upheld.  Dr. Joanne Sweeny, Sexting and Freedom of Expression: A Comparative Approach, 102 Ky. L.J. 103, 104­ (2013).

*Shannon Hayden is a second-year student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Shannon is also a member of the Royal Graham Shannonhouse III Honor Society, the Women’s Bar Association, and works as a research assistant for Professor John Bessler. This past summer, Shannon served as a judicial intern for the Honorable Ellen L. Hollander of the U.S. District Court for the District of Maryland. Next summer, Shannon looks forward to joining Tydings & Rosenberg as a summer associate.

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