A Maryland Court of Appeals ruled recently that a 16-year-old who sent an explicit clip of herself engaged in a consensual sexual act violated the state’s child pornography laws. The girl, referred to as S. K. in court documents, had filmed herself and texted the video clip to two close friends.
This ruling was upholding a previous ruling by a lower court that determined that S. K. had violated the state’s criminal statute meant to protect children from exploitation. They ruled that even though the video was produced and distributed by the minor herself, it was not exempt.
Judge Joseph M. Getty said that the court carefully considered the case before coming to a 6-1 ruling. The judges had to consider the question:
“Can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting?”
With the way the law is currently worded, it seems they can.
The Court of Appeals strongly urged that the law be updated to account for the ways that teens use technology today. Maryland has not yet updated its laws to account for teens’ use of technology “since the advent of sexting.”
S. K. opted to appeal the lower court’s decision after it was determined that she committed a delinquent act “which would be a crime if committed by an adult.”
She was not required to register as a sex offender like an adult would have been, but she was placed on probation with electronic monitoring and was required to undergo regular drug testing and attend an anger management class.
In her appeal, she argued that the law was intended to protect minors who were involved in the production of child pornography, not to prosecute them. Her lawyer further argued that S. K. should not be prosecuted under that law for distributing footage of her “own videotaped, consensual sex act.”
The state’s counterargument was that the video could come into the possession of adults who could then distribute it, and that the law was intended to “eradicate any child pornography.”
S. K. sent the video to a group chat consisting of her and 2 friends, another 16-year-old girl and a 16-year-old boy, where they shared ridiculous videos to try and “one-up” each other. The group trusted each other to keep these messages private but, after a falling out at the end of the year, S. K.’s video of herself performing fellatio was distributed to other students and reported to school officials.
Judge Getty highlighted that the law applies as it stands because it makes no distinction between a minor or an adult distributing the pornographic materials.
“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 and has been given broad authority to eradicate the production and distribution of child pornography. On the other hand, S.K., albeit unwisely, engaged in the same behavior as many of her peers.
The Court of Appeals also noted that there were changes needed and stated:
“We recognise that there may be compelling policy reasons for treating teenage sexting different from child pornography.”
There have been similar cases in other states, including a 14-year-old in Minnesota who was charged with a felony after she sent an explicit selfie to someone she liked. The selfie was then distributed further without her consent.
The charges were later dismissed by a judge who said the law was intended to protect children from child pornographers, not punish them for sexting.
The public defender who represented S. K. in the original case before the juvenile court, Michal Gross, told BuzzFeed News:
“Sexting is just normal adolescent behavior even if adults may disagree with it. Criminalizing kids for normal adolescent behavior is problematic.”
She also pointed out that exposing minors to the juvenile justice system increases their risk of exploitation and trauma.
Some on social media pointed out that the ruling, combined with the fact that the ones who disseminated the video to the school aren’t facing any charges, potentially encourages others to do the same.
Victims wouldn’t be able to seek help without risking prosecution.
The friend who allegedly distributed the explicit video faced no charges.
— Mark Joseph Stern (@mjs_DC) August 30, 2019
2. The teenager in this case consensually sent a sexually explicit video of herself to two friends. One of them distributed the video without her consent. Her consensual act was punished while the friend’s nonconsensual act is not. This is absurd and unjust.
— Mary Anne Franks (@ma_franks) August 29, 2019
Others pointed out that the courts and the legislature aren’t the only ones involved or at fault.
The biggest problem here isn’t the court OR the legislature IMO. It’s the prosecutor and law enforcement officials who saw this as an appropriate use of their resources and power.
I don’t know if I agree that the statue is ambiguous, but either way; the legislature can fix this.
— dkhunter (@kingdeedeekay) August 30, 2019
It is clear that the law did not serve to protect S. K. in this instance. Not only was she convicted of a crime in which she is also the victim, but the individuals who further distributed the video without her consent face no charges.
As Judge Getty asserted, perhaps it’s time that the wording of the law was updated to better help protect children from victimization.
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