Maryland Appeals Court Says Sexting Teen Is A Child Pornographer

Far too many prosecutors in far too many states have trouble reading child porn statutes. Instead of reading them how they're intended to be read -- to punish adults who victimize minors -- they read them to include the criminalization of minors participating in sexting. When these pictures and videos are shared, these justice system components become contortionists in order to treat subjects of recordings as their own child pornographers.

If only the courts weren't so willing to help. Instead of stopping this abuse of the law, they become part of the problem, offloading it on legislators who just aren't all that willing to alter existing child porn laws. Some legislators no doubt believe minors should be treated as sex offenders for engaging in sexting, even when the sexual acts themselves are legal. It's the documentation that's the problem.

Mark Joseph Stern of Slate has uncovered another one of these unfortunate incidents. This one is more unfortunate than most because of the actions of one of the recipients of the recorded sex act.

In 2016, a 16-year-old Maryland student known as S.K. in court documents sent a brief cellphone video to two friends. The clip depicted S.K. performing oral sex on an unknown man-a legal activity in Maryland, where the age of consent is 16. She sent the video as part of a game in which the friends attempted to "one-up" each other with "silly photos and videos." A few months later, S.K. had a falling-out with one recipient of the video, a 17-year-old boy known as K.S. He began to mock S.K., allegedly writing that she was a "slut" on classroom blackboards. He then reported the video to the school resource officer, Eugene Caballero.

Once the school cop was dragged into this, it was all over. Cops have a very small set of tools and they apply them carelessly to situations that don't demand this specialized equipment. S.K. went to a meeting with the school resource officer under the assumption he was going to help stop the distribution of this video. Of course, Caballero wasn't going to help with that. Caballero was just collecting evidence to be used against S.K., who at this point was arguably the victim of revenge porn, given the unauthorized sharing of the video she'd recorded. Caballero took her statement and passed it on to state prosecutors. This was the end result:

Maryland then charged S.K. with illegally distributing child pornography and displaying an obscene item to a minor. She was found guilty by a juvenile court, which found her delinquent as a distributor of child pornography. The court sentenced S.K. to supervised probation and placed her on electronic monitoring. Her punishment required her to report to a probation officer periodically, allow him to visit her home, obtain permission before leaving the state, submit to weekly drug urinalysis, and complete an anger management course.

S.K. challenged the sentence, pointing out that the law does not provide for charging the subject of alleged child porn with child pornography production. Like a lot of these laws, the language unfortunately appears to allow victims of child porn production to be treated as perpetrators. You are your own child pornographer, says the Maryland Court of Appeals [PDF].

The court compares other states' poorly-written laws with Maryland's poorly-written law and comes to the conclusion that a minor victim of revenge porn is the producer of child pornography.

We refuse to read into the statute an exception for minors who distribute their own matter, and thus we believe S.K.'s adjudication as delinquent under CR 11-207 must be upheld.

That reading seems sympathetic to the state's arguments. It said the state law was put in place to punish any distribution of child porn, no matter who created it. Even if porn contained a recording of two consenting minors (both participants were above the legal age of consent), the creation and distribution of the recording was a criminal act. The court looks at the law and decides the legislative intent was to treat minors as their own pornographers.

Here, S.K is prosecuted as a "child pornographer" for sexting and, because she is a minor, her actions fell directly within the scope of the statute. The General Assembly has consistently expanded the scope of the statute to assist in the eradication of any form of child pornography. As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.

Therefore, based on this intent and the unambiguous language, we believe S.K.'s conduct falls within the purview of the statute.

It then tosses in a half-hearted apologetic shrug.

In affirming this adjudication, however, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography.

The dissent says this is wrong. A plain reading of the law makes it clear the state shouldn't be punishing subjects of child porn as child pornographers. This is a failure of the court, according to the dissent, not a failure of legislation.

As provided by S.K., the statute creates a dichotomy "between the pornographer, or "person," and victim, or "minor" so that these two actors are different individuals[.]" 1 Therefore, I conclude that the plain language of Crim. Law 11-207(a)(4)(i) does not permit S.K. to be delinquent for transmitting a visual representation of herself. There is ambiguity in Crim. Law 11-207(a). ("We have said that there is an ambiguity within a statute when there exist two or more reasonable alternative interpretations of the statute." Bellard v. State, 452 Md. 467, 481, 157 A.3d 272, 280 (2017)). When such ambiguity exists, "the job of this Court is to resolve the ambiguity in light of the legislative intent[.]"

If the court really wanted to examine legislative intent, it could have started by examining statements of intent made by the court itself in other cases.

In reflecting on a Petitioner's First Amendment challenge to his conviction of photographing a minor engaged in sexual conduct in violation of 11-207(a)(2), this Court asserted that "we balance the right to freedom of expression against the right of the State to protect children against sexual exploitation." Id. at 36, 641 A.2d at 878 (emphasis added). Therefore, the Court illuminated the General Assembly's intent to protect children against sexual exploitation under Crim. Law 11-207(a). In the case at bar, S.K. was not being exploited by someone else. She made a video depicting consensual sexual conduct. The General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution, as reflected by the language of Crim. Law 11-207(a). Rather, the statute contemplates protecting children from the actions of others that bear negatively upon them.

Since this recording was not abusive and was not a depiction of a minor engaged in a sex act with an exploitative adult, there's no crime here. The sex was consensual as was the recording. And yet, this is only the dissent. Prosecutors in the state are free to punish minors for recording legal, consensual sex acts. Since these recordings only end up in court after someone has shared them with people the recording party didn't want them shared with, the court is allowing prosecutors to punish teens for the terrible things classmates and acquaintances have done to them.