The Maryland Court of Appeals, in a 6-to-1 ruling, upheld the decision of the Court of Special Appeals in finding that Maryland’s child pornography laws apply when the child is both the subject of and disseminator of sexually explicit material via sexting.[1]  The case stems from an incident in which a teenager texted a video to two of her friends that depicted herself engaging in a sexual act with another teenager.[2]  After a falling out with one of the recipients, the video was shared throughout the school and then turned over to the school resource officer from the Charles County Sheriff’s Office.[3]

The incident took place during the 2016-2017 school year at Maurice J. McDonough High School in Charles County, Maryland.[4]  In October of the fall semester, the then sixteen-year-old female texted the sexually explicit video to both a sixteen-year-old female friend and a seventeen-year-old male friend.[5]   A falling out occurred in December of that year between the teenager girl and the seventeen-year-old boy at which point he turned the video over to the school resource officer.[6]  The State charged the girl as a juvenile with the three following counts: (1)  filming a minor engaged in sexual conduct in violation of CR § 11-207(a)(2); (2) distributing child pornography in violation of CR § 11-207(a)(4); and (3) showing an obscene item to a minor in violation of CR § 11-203(b)(1)(ii).[7]  The first count was dismissed for lack of evidence at a disposition hearing in May 2017, the girl was placed on electronic monitoring for a little less than a month and supervised probation by the Department of Juvenile Services.[8] 

The Court of Special Appeals of Maryland held that a minor engaging in consensual sexual activity is not except from CR § 11-207(a)(4), but that a digital file did not fall within the statutory meaning of the term “item” in  CR § 11-203(b)(1)(ii).[9]  When appealed in February 2018, the girl’s lawyer, Claudia Cortese, of the Maryland’s Office of the Public Defender, stated that the girl’s conduct was legal and voluntary and that by letting the decision stand, it would come down to charging the girl of being her own pornographer.[10]  In response to the filing, Maryland Assistant Attorney General Sarah Pritzlaff stated that the possible harm to the child could not be ignored and if the conviction were to be overturned, it would disregard the legislature’s interest in stopping child pornography and protecting minors.[11] 

In the decision from the Maryland Court of Appeals, the court addressed the sociocultural phenomenon of sexting and the prevalence and role that smart phones play in the lives of teenagers today.[12]  The court also acknowledges the unique challenge presented by the case, the dynamic of the State’s interest in preventing child pornography and the girls behavior that many of her peers are also engaged in.[13]  The court considered the language of the statute as it was written in its plain meaning and saw no distinction between whether the distribution was at the hands of a minor or an adult.[14]  In his dissent, Judge Michele D. Hotten found ambiguity in the reading of the legislation and felt it was the role of the court to resolve the ambiguity as it existed.[15]  Judge Hotten also emphasized that the legislative purpose of the anti-child pornography law is to stop the trafficking of child pornography and prevent the sexual exploitation and abuse of minors.[16]      

[1] Ann E. Marimow, Md.’s top court upholds child pornography charge against teen who texted friends a video of herself, The Washington Post (Aug. 28, 2019).

[2] Id.

[3] Id.

[4] In re S.K. 2019 WL 4051636 at 1.

[5] Id.

[6] Id. at 2.

[7] Id.

[8] Id at 3.

[9] Id. (quoting In re S.K., 237 Md. App. 458, 473, 186 A.3d 181 (2018)).

[10] Ann E. Marimow, Md.’s top court upholds child pornography charge against teen who texted friends a video of herself, The Washington Post (Aug. 28, 2019).

[11] Id.

[12] In re S.K. 2019 WL 4051636 at 5.

[13] Id. at 12.

[14] Id.

[15] Id. at 18.

[16] Id.