A forty-seven-year-old man, Stephen Fields, uses four false social media accounts to pose as a twenty-year-old woman. Fields uses these accounts to send and receive media of children engaged in sexually explicit conduct. Fields was prosecuted for distribution of child pornography and attempted production of child pornography.^[1]

A sixteen-year-old girl, S.K., records herself engaging in consensual sexual activity with another. She sends the videos to her two close friends, and one friend shares the video with the school’s resource officer after they had a falling out. S.K., a minor herself, was prosecuted for distribution of child pornography in Maryland.^[2]

I. Introduction

A third of American teenagers send more than one hundred text messages a day.^[3]  Ninety-five percent of U.S. teenagers aged thirteen to eighteen have access to a smartphone, and fifty-seven percent of parents of U.S. teenagers worry about their child sending or receiving explicit messages. ^[4]  Growing up as a teenager is a challenging experience.  Teenagers must balance parental supervision and protection, while exploring their identity, relationships with others, and desire for greater independence.  For some teenagers, sexting is another way to explore their sexuality and relationships.^[5]  At least 18.5% of middle and high schoolers have received sexually explicit images or videos on their phones or computers.^[6] 

This comment is prompted by the 2019 Court of Appeals of Maryland decision In re S.K.^[7]  The court found teenager S.K. was properly adjudicated delinquent under Maryland’s child pornography statute, even though the sexually explicit video was of S.K. herself, and was consensually sent by S.K.^[8]  In this case, S.K. was both the violator and the perceived “violated” of the child pornography statute.^[9]  This decision resulted from the Maryland legislature’s failure to adequately modernize its child pornography statutes to incorporate the impact technology has had on teenage lives.^[10]

This comment will explore the problems with Maryland’s current child pornography statute and its applicability to teenage consensual sexting.  The comment will argue that teenagers engaged in consensual sexting should be exempted under Maryland’s statute, and that alternatively, the statute could be amended in a variety of manners.^[11]  Further, the comment will argue that sexting and the broader concept of “digital health” should be added to public school health curriculums, along with a community-based approach to addressing the potential consequences of sexting.^[12]

Section II will discuss the legislative history behind both the federal and Maryland child pornography statutes.^[13]  Section II will also discuss recent changes to Maryland’s statute, including new laws, the statutory interpretation within In re S.K., and new legislative proposals in response to the case.^[14]  Section III will emphasize the statutory and social dilemma of charging sexting teenagers under Maryland’s statute as rooted in gender bias.^[15]  Section IV will specifically provide a three-prong solution to the teenage sexting phenomena.  First, the author will provide ways in which the statute can be amended to better shield teenagers who are consensually sexting.^[16]  Second, the author will propose sexting and “digital health” be included in public school sexual education classes in order to explain the consequences of internet activity and explore the gendered stigma behind certain sexual activities.^[17]  Finally, the author will argue a community-based approach is the proper intervention when a sext spreads beyond its intended audience instead of shaming and adjudicating the minor victim as delinquent.^[18]

II. Historical Development

Both federal and Maryland child pornography statutes fail to distinguish whether the person charged under the statute may also be the victim protected in the text.^[19]  The definitions of child pornography are broad and may lead to difficulty in deciding whether to prosecute as it is unclear if the victim may also be the perpetrator.  Although both federal and Maryland statutes have attempted to keep up with changes in technology and modern communication, both have failed to address teenage sexting.^[20]

A. A Brief Overview of the Evolution of Federal Child Pornography Statutes

Congress first passed the Protection of Children Against Sexual Exploitation Act in 1977, which prohibited the use of children under the age of sixteen to produce child pornography.^[21]  The act was meant to encompass both large-scale and individual traffickers of child pornography.^[22]  Congress then passed the Child Protection Act of 1984 to further prohibit the production, raise the age of children protected from sixteen to eighteen, and include trafficking of child pornography for non-pecuniary reasons.^[23] 

The first major change to federal child pornography statutes after the modernization of technology occurred in 1988, when Congress enacted amendments to include the use of computers.^[24]  This update criminalized transporting, distributing, or receiving child pornography through a computer.^[25]  Congress continued to enact a variety of amendments relating to technology and child pornography, some of which were struck down by the Supreme Court.^[26]  Congress must continue to draft such amendments related to child pornography carefully so to avoid overbreadth, which could lead to an infringement on First Amendment free speech rights.^[27]

B. Current Federal Child Pornography Statutes Relevant to Teenage Sexting

Federal law defines child pornography as any visual depiction such as “[A] digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct . . . .”^[28]  Persons may be charged under a number of federal child pornography statutes depending on the alleged offense. For example, 18 U.S.C. § 2251 criminalizes the production of child pornography, stating “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . . .”^[29]  This statute applies to any parent, legal guardian or person who has custody or control of a minor who knowingly permits them to engage in or assist another person to engage in sexually explicit conduct.^[30]  A first time violation or attempted violation may result in a fine and fifteen to thirty years in prison.^[31]  Those who have previously violated the statute or related federal or state statute face greater punishments.^[32]

Persons who attempt to distribute sexually explicit materials involving minors to a minor to encourage participation in illegal activity are in violation of 18 U.S.C. §2252A(a)(6).^[33]  A violation of this statute can result in imprisonment for five to twenty years, depending on the specific offense and any related prior convictions.^[34]  The U.S. Department of Justice has made clear that “[F]ederal jurisdiction almost always applies when the Internet is used to commit a child pornography violation.”^[35]

Like Maryland law, federal child pornography statutes fail to distinguish whether the minor being protected by the statutes can also be the target of prosecution.^[36]  The U.S. Department of Justice clarifies that the age of consent in a state is irrelevant; any depiction of a minor who is under the age of eighteen is illegal.^[37] In the United States, the age of consent to sexual activity varies from state to state.^[38]  The age may range from sixteen to eighteen years old.^[39]  However, the U.S. Supreme Court has held that crimes related to 18 U.S.C. §§ 2252(a)(1), (a)(2) require individuals charged with distribution of child pornography hold scienter of the depicted performer’s age – the alleged offender must know the victim was under the age of eighteen.^[40]

C. Maryland Statutes

1. Current Child Pornography Statute

In Maryland, child pornography is prohibited through several statutes analogous to federal ones.^[41]  A person may not cause or induce a minor to be a subject in obscene matter, sadomasochistic abuse, or sexual conduct.^[42]  A person also may not photograph or film a minor engaging in these acts or conduct, they may not use a computer to depict or describe the acts, and they may not knowingly promote, distribute or possess with the intent to distribute any matter that depicts a minor in such acts.^[43]  A first time violation of CR § 11-207 results in a felony and potential fine up to $25,000 and/or imprisonment up to ten years.^[44]  Furthermore, someone who violates the statute more than once may be fined up to $50,000 and/or up to twenty years in prison.^[45]

      2. Changes to Child Pornography Law

In the past, Maryland child pornography statutes required that a minor be engaged in sexual conduct.^[46]  Thus, minors who were depicted in “lascivious exhibition”^[47] were not covered by the statute.  In April of 2019, Governor Larry Hogan signed a bill updating the law to expand “sexual conduct” to include lascivious exhibition of the genitals or pubic area of any person, and to clarify that “visual representations” may include a computer-generated image that is indistinguishable from an actual and identifiable child.^[48]  This change in part reflects an attempt by the legislature to modernize the statutes to align with developments in technology.^[49]

        3. In re S.K and the Interpretation of CR § 11-207

At least some of the 2019 bills surrounding child pornography were in reaction to the ruling of In re S.K.^[50]  The Maryland legislature has introduced five new bills in the 2020 session to attempt to modernize the child pornography statute.^[51]  The Court of Appeals of Maryland found that a minor may be charged under CR § 11-207 even if the minor produces and distributes pornographic materials of himself or herself.^[52]  In other words, a minor who is engaged in consensual sexual activity may be their own pornographer through the act of “sexting.”^[53]  The court also held that the minor’s cellphone video is a digital file that is covered under the CR § 11-203 prohibition of displaying obscene content to minors.^[54]

 In re S.K, a sixteen-year-old female, S.K., in Charles County, was best friends with sixteen-year-old female, A.T. and seventeen-year-old male, K.S.^[55]  The trio had a group text message where they would send photos and videos to “one-up” and impress each other.^[56]  In light of this competition, S.K. texted a video of herself consensually performing fellatio on a male.^[57]  S.K. was nude and her upper torso is visible for most of the video.^[58]  After a falling out between S.K. and K.S., K.S. reported the video to the high school resource officer, who then reported this to the State’s Attorney’s Office for Charles County.^[59]  The State charged S.K. as a juvenile^[60] and she was adjudicated delinquent for distributing child pornography in violation of C.R. § 11-207(a)(4) and displaying an obscene item^[61] to a minor in violation of C.R. § 11-203(b)(1)(ii).^[62]  S.K. was not required to register as a sex offender; however, she was placed on electronic monitoring and probation which required drug testing, an anger management class, and a substance abuse assessment.^[63]  Notably, none of these conditions of probation seem directly related to the violations that S.K. was found guilty of committing.

 Upon appeal the Court of Special Appeals of Maryland found a minor who legally engaged in consensual sexual activity was not exempt from C.R. § 11-207(a)(4), as the “person” and “minor” may be the same individual under the language of the statute.^[64]  However, they found that a “digital file” did not come under the meaning of “item” in the statute regarding displaying obscene items to a minor.^[65]  The Court of Appeals of Maryland upheld the intermediate appellate court’s finding that under C.R. § 11-207(a)(4), an individual may be both the “person” and “minor” described.^[66]  The court found that the plain meaning of the statute did not distinguish as to whether a minor or adult is distributing the matter.^[67]  The court further asserted that any other interpretations of the statute could only be made if the statute itself was amended by the Maryland General Assembly, but it was not within the power of the court to make these changes.^[68]  Further, the Court of Appeals of Maryland reversed the intermediate appellate court’s ruling regarding a “digital file.”^[69]  The court found that a cellphone video is a text digital file covered under the term “film” in CR § 11-203 and thus S.K. was also in violation of CR § 11-203(b)(1).^[70] 

      4. Proposed Statutory Changes

During the 2019 legislative session, Delegate C.T. Wilson introduced House Bill 1049, which would have decriminalized specific instances of distribution or manufacturing of child pornography by a person younger than the age of eighteen.^[71]  According to Delegate Wilson, this bill was, at least in part, in response to the Court of Appeals of Maryland ruling, In re S.K.^[72]  The bill’s provisions would have affected § 11-207(a)(4), which states:

a person may not:

. . .

4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:

            (i)  that depicts a minor engaged as a subject in                sadomasochistic abuse or sexual conduct; or

            (ii)  in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct;^[73]

Delegate Wilson admitted to drafting the bill in a broad manner so it could be further clarified by the committee, and expressed he was unsure how to draft the bill to narrowly apply to situations similar to In re S.K.^[74]  The bill did not pass, and it appears as though lawmakers across the country are unsure of how to, or whether, to prevent the prosecution of teenagers for sexting.^[75]  Two members of the Maryland state senate wrote an op-ed on how the use of technology needs to be better accounted for in Maryland’s child pornography statute:

Next session, we will also aim to make possession of child pornography a felony for first-time offenses, as is the law in 42 other states. Not all sexually deviant offenders should be felons, but all sexual exploiters of children should be eligible to enter that category, even if it is their first time getting caught.^[76]

Although this op-ed does not address the possibility of teenagers being convicted of a felony under this proposition, the article highlights the tensions in modernizing such a statute.^[77]  Lawmakers aim to be “tough on crime” and deter the creation and distribution of child pornography, yet teenagers caught sexting can be charged under these laws. 

III. Issue

In re S.K. held that a teenager who possess digital materials of themselves engaging in consensual sexual activity can be their own pornographers.^[78]  This ruling led to mixed responses from legislators, attorneys, and professionals in the field.^[79]  Because Maryland has failed to adequately update its child pornography statute, the population lawmakers meant to protect is the same population that is prosecuted.^[80]  Under the First Amendment, the state has a compelling interest in protecting children from abuse and safeguarding their wellbeing.^[81]  Such an interest receives strict scrutiny upon review of related statutes, where the statutes are presumed valid.^[82]  When a statute is being reviewed under the compelling state interest test, the state must demonstrate the statute is narrowly-tailored to accomplish a compelling state interest.^[83]  Critics of amending child pornography statutes to reflect teenage sexting argue the state’s compelling interest in safeguarding children outweighs the need to amend outdated statutes.^[84]

Some data demonstrates that teenagers, more specifically teenage girls, are pressured into sexting through their male peers and societal influence.^[85]  Prosecuting teenagers for sexting will not only predominantly affect teenage girls, but it is an ineffective and harmful method of addressing teenage sexting.^[86]  Child pornography laws present a confusing conflict between the desire to protect teenagers and the saturation of sexualized images of women and men in advertisements, television, and the internet.^[87]

Whether Maryland teenagers are prosecuted under the child pornography statue is up to prosecutorial discretion, and it is unclear how many prosecutors have declined to charge cases similar to S.K.’s. ^[88]  Such discretion leaves too much of the decision to prosecute based on a State’s Attorney’s priorities, personal views, and precedent.  Further, such authority by the State’s Attorney’s office arguably infringes on the rights of parents to raise their children and punish such behavior if they choose.^[89]  This could be argued to be an exercise of paternalism, where the state decides to intervene where a parent or community member might be more appropriate.^[90]  In light of In re S.K. and the balancing of concerns, Maryland needs to update their heavy-handed approach to consensual teenage sexting.

IV. Solution

A three-part solution is recommended to address the legal issue surrounding teenage consensual sexting.  First, Maryland should amend its child pornography statute to be a more accurate reflection of modern technology’s effect on teenage sexuality and sexual activity.^[91]  Second, sexting should be discussed in the context of a broader “digital health” curriculum offered in public school health education classes outlining the risks and stigma of such activity.^[92]  Finally, teenagers whose consensual sexts have spread beyond their intended audience should have a community-based support system available.^[93]

A. Amending Maryland’s Child Pornography Statute

The state has a compelling interest in protecting children and preventing child pornography.^[94]  Although this interest is important and justifies many laws, it is not an appropriate response to teenage sexting.  Prosecuting teenagers’ consensual sexting as both victims and perpetrators, however, sends a contradictory message to minors and fails to protect true victims.^[95]  Lawmakers must ask themselves who they are attempting to protect and who they are attempting to target.^[96]  Consensual sexting differs from “revenge pornography,” where a person’s image is shared without the consent of the subject involved.^[97]  Thus, the child pornography statute in question, C.R. § 11-207, must either differentiate between the perpetrator and victim, remove liability for the consensual sexting of teenagers under the age of eighteen, or provide specific guidelines to prosecutors to clarify which instances may warrant a delinquency proceeding, such as in cases of coercion.

1. Amend the Statute so “Person” and “Minor” Cannot Mean the Same Individual

An important conclusion made in the decision of In re S.K. was clarifying that the Maryland child pornography statute C.R. § 11-207 permits the person prosecuted under the statute to be the same individual as the minor harmed.^[98]  Maryland should amend the language in C.R. § 11-207 to clarify that a “person” and “minor” cannot be the same individual.^[99]  This distinction could be achieved more broadly by amending it into the statute.  An amendment such as this would protect the minor depicted in the sext from being prosecuted as the perpetrator.  This would not protect minor B who received and kept the consensual sext of minor A, who could still potentially be guilty of “[K]nowingly promot[ing], distribut[ing] or possess[ing] with the intent to distribute any matter that depicts a minor . . . .” under C.R. § 11-207.^[100]

A more focused and effective approach would be to plainly target teenagers and sexting in the amendment by permitting consensual sexting between minors or adding it as an affirmative defense in juvenile adjudications.^[101]  Maryland Delegate C.T. Wilson, who introduced House Bill 1049, suggested exactly this in 2019.^[102]  An amendment such as this raised many concerns for legislators, due to the possibility of coercion between minors of a large age gap or the potential for sexts to spread and cause harm.^[103]  It is important to note that there is little data to suggest criminalization, such as the criminalization of peer-to-peer file sharing, is an effective method of deterring teenagers.^[104]  Although S.K. was adjudicated delinquent in juvenile court and not criminal court, the data suggests the prohibition of an act does not necessarily act as a deterrent.^[105]

Although House Bill 1245, introduced in the 2020 legislative session, reviews sexting in the context of consent, which is crucial to addressing teenage sexting, it does not take into consideration age differences.^[106]  Sexting between two seventeen-year-olds versus a seventeen-year-old and a thirteen-year-old should be treated differently.^[107]  The amendment could include a prohibition of an age gap beyond two or three years between the sender and receiver, with language such as “[m]inors shall not be prosecuted under this statute, unless there is greater than a two-year age difference between the minor parties.”  Factors such as age, coercion, and motivation are the details that matter, and why the prosecutorial guidelines suggested below are so important.^[108]

       2. Outline Procedures to Guide Prosecutorial Discretion

If Maryland legislators fail to amend the child pornography statute to directly address teenage sexting, another potential amendment is to require prosecutors to review certain factors when deciding whether and how to prosecute a potential case.  As discussed in section III, it is unclear how many sexting cases prosecutors decline to charge.^[109]  Much of these decisions come down to the individual prosecutor.^[110]  In the context of teenage sexting, such discretion is not just as it allows for personal biases and individual morals to influence the decision to prosecute.^[111] Important factors should be highlighted for prosecutors to take into account when reviewing potential charges.^[112]  Factors such as the ages of the parties, how the sext was spread, whether it spread beyond its intended audience, and the motivation of the parties sharing the sext should be outlined for a prosecutor as they evaluate the case.^[113]  Emphasizing these factors before prosecutors could help guide their discretion and lead to fewer consensual teenage sexting cases appearing before the courts. Another potential solution is to mimic the prosecutorial certification process required of federal prosecutors in cases involving minors.^[114] Such certification may act as a general deterrent in either presenting such a case before, or receiving approval from, a county State’s Attorney or District Attorney.

B. Integrating “Digital Health” into Sexual Education Courses

Sexting is a new part of the digital world that will not be slowing down, and  preparing students to understand how their sexts (and other actions on the internet) affect themselves and others is a crucial factor in developing technologically responsible habits.^[115] Minors should begin to learn about responsible online behavior and the consequences of their actions on the internet starting in the sixth grade.^[116]  Then, healthy online habits can be further developed in sexual education, starting in the seventh grade.^[117]  A two-fold method of educating teenagers about sexting could be effective.^[118]

Maryland’s H.B. 1245, introduced in the 2020 legislative session, includes the development of an educational program to be administered in grades six through twelve.^[119]  The program is meant to educate minors on the risks of possessing, sending, displaying, and publishing sexually explicit or nude images.^[120]  Such a proactive program is an opportunity to help minors develop healthy sexuality and a realistic understanding of the consequences of sexting in a supportive environment.^[121]

1. Educate About the Risks of Sexting Without Shaming

Students should be taught about the consequences of sexting from an objective and realistic perspective through a feminist lens.  By teaching minors about the realities of sexting, we can empower them to make more informed decisions.^[122]  Throughout their development, teenagers are exploring their sexuality and identity, and it is important to recognize that sexting may be a part of that.^[123]  Instead of shaming or criminalizing such behavior, education encourages teenagers to develop healthy sexuality, in all forms, and identify risks.^[124]  A criminalization or prohibition of sexting contradicts the messages our hypersexual society is sending teenagers.^[125]  The saturation of sex in the media suggests being sexual is not necessarily off limits for minors.^[126]

       2. Acknowledge how Gender Impacts Repercussions for Sexual Activity

Teenagers, more specifically teenage girls, are pressured into sexting through their male peers and societal influence.^[127]  Although feminists are divided as to the benefits or harms surrounding pornography, most agree that the social stigma and consequences surrounding sexual activity are usually greater for women.^[128]  Girls’ own bodies have been used to sexually shame them, and it is crucial to provide context as to why data demonstrates girls suffer more consequences than boys.^[129]  What does this stigma reflect about our greater society?  Honest conversations in an educational setting could help develop healthier attitudes towards gender and sexuality, or perhaps simply expose students to a new perspective.^[130] 

C. Create a community-based support system

Some states have attempted to develop a community-based approach to teenage sexting.^[131]  This includes counseling and parental support alongside mandated educational programs for perpetrators.^[132]  Teenagers who have not experienced adverse effects due to sexting should not be forced into counseling; however, a collaboration between parents and the school resource team can help a teenager if their sext was spread.^[133]  Such a support should acknowledge that teenagers are exploring sex and sexuality, and that shaming is neither an effective nor appropriate response to sexting.^[134]  Responses to teenage sexting, specifically girls’ sexting, reflects a larger societal stigma surrounding women, pleasure, and sex.^[135]  Teenagers should not feel shame or guilt surrounding sex, but instead should be well-informed of potential consequences and be permitted to make their own decisions.^[136]

V. Conclusion

Teenagers today are navigating their sexuality in a technologically complex society.  Consensual sexting between minors should not be a criminal offense.  By failing to amend its child pornography statutes, Maryland lawmakers have left vulnerable to prosecution the exact population they intended to protect.  Although states have a compelling interest in preventing child pornography and its devastating effects, cases such as In re S.K. should not fall under this scope.  Maryland’s refusal to explore how modern teenage sexuality has evolved in the era of technology shames teenagers and inadequately prepares them to face sex in the modern adult world.

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Paulina Taniewski is a third-year law student and the Comments Editor of the University of Baltimore Law Forum. Currently, Paulina is a law clerk for Maryland Legal Aid, where she enjoys assisting clients with their administrative law needs. Her interests include human rights law and public service, and she looks forward to serving as a law clerk to the Honorable Daniel A. Friedman on the Court of Special Appeals of Maryland upon graduation in 2021.

[1] Towson Man Sentenced to 12 Years in Federal Prison for Distribution of Child Pornography, U.S. Dep’t of JUST. (Oct. 9, 2019), https://www.justice.gov/usao-md/pr/towson-man-sentenced-12-years-federal-prison-distribution-child-pornography.

[2] In re S.K., 466 Md. 31, 57, 215 A.3d 300, 315 (2019).

[3] Amanda Lenhart et al., Teens and Mobile Phones, Pew Rsch. Ctr. (Apr. 20, 2010), https://www.pewinternet.org/2010/04/20/teens-and-mobile-phones/.

[4] Monica Anderson & JingJing Jiang, Teens’ Social Media Habits and Experiences, Pew Rsch. Ctr. (May 31, 2018), https://www.pewresearch.org/internet/2018/05/31/teens-social-media-technology-2018/#vast-majority-of-teens-have-access-to-a-home-computer-or-smartphone; Monica Anderson, How Parents Feel About – and Manage – Their Teens’ Online Behavior and Screen Time, Pew Rsch. Ctr. (Mar. 22, 2019), https://www.pewresearch.org/fact-tank/2019/03/22/how-parents-feel-about-and-manage-their-teens-online-behavior-and-screen-time/.

[5] Sexting: (2005) The creation, possession, or distribution of sexually explicit images via cellphones. The term is a portmanteau of sex and texting. Sexting, Black’s Law Dictionary (11^th ed. 2019).

[6] In re S.K., 466 Md. at 43, 215 A.3d at 307 (citing Linda Searing, The Big Number: 18.5 Percent of Youths Get Sexually Explicit Images, Videos on Devices, Wash. Post (July 27, 2019), https://www.washingtonpost.com/health/the-big-number-185-percent-of-youths-get- sexually-explicit-images-videos-on-devices/2019/07/26/2720ae4e-aee5-11e9-a0c9- 6d2d7818f3da_story.html?utm_term=.eec26e054fb5).

[7] Ann E. Marimow, Maryland’s Top Court Upholds Child Pornography Charge Against Teen Who Texted Friends a Video of Herself, THE BALT. SUN (Aug. 26, 2019, 12:16PM), https://www.baltimoresun.com/politics/bs-md-pol-court-case-text-photo-herself-20190829-tuvw6c2ojnbcnd7kjciluehsq4-story.html.

[8] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01(l), (m) (West 2019) (“(l) ‘Delinquent act’ means an act which would be a crime if committed by an adult. […] (m) ‘Delinquent child’ is a child who has committed a delinquent act and requires guidance, treatment, or rehabilitation.”); Garnett v. State, 332 Md. 571, 577, 632 A.2d 797,800 (1993) (Held the age of consent to sexual activity in Maryland is sixteen years of age.); see also In re S.K., 466 Md. 31, 54-55, 215 A.3d 300, 314 (2019).

[9] In re S.K., 466 Md. at 31, 54, 215 A.3d at 300, 313.

[10] Id. at 62-64, 215 A.3d 300, 19-20.

[11] See infra Section IV.

[12] See infra Section IV.

[13] See infra Section II.

[14] See infra Section II.C.

[15] See infra Section III.

[16] See infra Section IV.A.

[17] See infra Section IV.B.

[18] See infra Section IV.C.

[19] See sources cited infra notes 28-34; see also sources cited infra note 41.

[20] See sources cited infra notes 28-34; see also sources cited infra note 41.

[21] Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, 92 Stat. 7 § 2 (1978) (codified at 34 18 U.S.C. §§ 2251-53).

[22] S. Rep. No. 95–438, at 6 (1977).

[23] Child Protection Act of 1984, Pub. L. No. 98–292, 98 Stat. 204 (1984).

[24] Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No., 100-690 § 7511, 102 Stat. 4485 (codified as amended at 18 U.S.C. § 2252(a) (1999)).

[25] Id.

[26] Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); David Stout, Supreme Court Strikes Down Ban on Virtual Child Pornography, N.Y. Times (Apr. 16, 2002), https://www.nytimes.com/2002/04/16/national/supreme-court-strikes-down-ban-on-virtual-child-pornography.html (The Child Pornography Prevention Act of 1996 prohibited [1] any visual depiction, including computer-generated images, that appeared to be of a minor engaging in sexually explicit conduct, and [2] any visual depiction that conveys the impression of depicting a minor engaging in sexually explicit conduct. The Free Speech Coalition, an adult-entertainment trade association, argued “appears to be” and “coveys the impression” were both overbroad and too vague, therefore violating the First Amendment protection of speech that is neither obscene or child pornography. The U.S. Supreme Court held these provisions were overbroad and unconstitutional. The statute covered speech that was not criminal and created no victims.).

[27] Stout, supra note 26.

[28] 18 U.S.C. § 2256(8)(B).

[29] 18 U.S.C. § 2251(a).

[30] 18 U.S.C. § 2251(b).

[31] 18 U.S.C. § 2251(e).

[32] Id.

[33] 18 U.S.C. § 2252A(a)(6).

[34] 18 U.S.C. § 2252A(b).

[35] U.S. Dep’t of Just., Citizen’s Guide to U.S. Federal Law On Child Pornography (2017).

[36] 18 U.S.C. § 2256; Interview with Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Maryland (Feb. 20, 2020) (A confidential interview with an Assistant U.S. Attorney (“AUSA”) revealed the U.S. Department of Justice does not typically prosecute minors under the federal child pornography statute. According to the AUSA, the federal justice system avoids placing minors in federal prison at all costs, and will either decline to prosecute such cases or pass them on to state prosecutors. The AUSA will typically only prosecute a minor if there is no other possibility of prosecuting in another jurisdiction; this is rare.).

[37] See supra note 35.

[38] Jennifer Ann Drobac, Wake Up and Smell the Starbucks Coffee: How Doe v. Starbucks Confirms the End of ‘the Age of Consent’ in California and Perhaps Beyond, 33 B.C. J. of L. & Soc. Just. 1, 1 (2013).

[39] Id.

[40] United States v. X-Citement Video, Inc., 513 U.S. 64, 115 (1994) (The Supreme Court held an individual who owned and operated a video company was required to hold actual knowledge the pornographic video he sold and shipped to an undercover police officer depicted a performer under the age of eighteen. “Knowingly” was extended to the age of the victim as well.).

[41] Md. Code Ann., Crim. Law § 11-207 (West 2019).

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Danielle E. Gaines, Lawmakers Pass Bill That Would Expand Prosecution of Child Erotica, Md. Matters (Apr. 14, 2019), https://www.marylandmatters.org/2019/04/14/lawmakers-pass-bill-that-would-expand-prosecution-of-child-erotica/.

[47] Id. (Lascivious exhibition: minors posing with their genitals exposed in a manner meant to be erotic.).

[48] S.B. 736, 2019 Leg., 439th Sess. (Md. 2019). 

[49] Gaines, supra note 46.

[50] Id.

[51] S.B. 45, 2020 Leg., 440th Sess. (Md. 2020) (This bill alters certain elements of the child pornography statute so that person and minor cannot be the same individual. It is the most basic statutory change in response to In re S.K.); S.B. 365, 2020 Leg., 440th Sess. (Md. 2020) (This bill amends a few different laws and requires that minors cannot be found in violation of the law unless they have previously been adjudicated or charged with certain delinquent acts. Further, if child pornography is that minor’s most serious offense then they will be placed in a mandatory educational program and found guilty of a civil offense.); H.B. 931, 2020 Leg., 440th Sess. (Md. 2020) (This bill amends the distribution of child pornography to strictly apply to persons eighteen years of age or older.); H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020) (This bill also amends a variety of laws. It brings a minor’s sexting to juvenile court and does not include consensual sexting between minors when no emotional distress occurred and the sender had no reasonable expectation the message would stay private. It also changes the statutory language so the person and minor cannot be the same individual charged. Further, a minor cannot be charged with child pornography from possessing pictures of themselves on their phones. This bill also develops a “sexting-ed” class to be taught from sixth to twelfth grade.); H.B. 0272, 2020 Leg., 440th Sess. (Md. 2020) (This bill brings violations to the child pornography laws by minors under the jurisdiction of the juvenile court and requires consensual sexting between minors be a mitigating factor in adjudication.).

[52] In re S.K., 466 Md. 31, 48, 215 A.3d 300, 310 (2019).

[53] Id. at 36, 215 A.3d at 303.

[54] Id. at 65, 215 A.3d at 320.

[55] Id. at 35, 215 A.3d at 302.

[56] Id.

[57] In re S.K., 466 Md. 31, 35, 215 A.3d 300, 302 (2019).

[58] Id. at 37, 215 A.3d at 303.

[59] Id. at 37-38, 215 A.3d at 303-04.

[60] Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01 (l) (West 2019) (S.K. was found delinquent; she committed an act that would be a crime if committed by an adult.).

[61] Md. Code Ann., Crim. Law § 11-203(4) (West 2019) (“’Item’ means 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.”).

[62] In re S.K., 466 Md. at 38-39, 215 A.3d at 304 (Count one was filming a minor engaging in sexual conduct in violation of CR. § 11-207(a)(2). The count was dismissed by the circuit court, which sat as a juvenile court, as no evidence was presented that S.K. was filming the video.).

[63] Id. at 39, 215 A.3d at 304-05 (The basis for such a punishment was not discussed in the decision. It is unclear why S.K. was required to complete drug testing and classes. Certain information may have been withheld from the public because this case was tried in juvenile court.).

[64] Id. at 57-58, 215 A.3d at 315-16.

[65] Id. at 39-40, 215 A.3d at 304-05.

[66] Id., 215 A.3d at 305.

[67] In re S.K., 466 Md. 31, 57, 215 A.3d 300, 315 (2019).

[68] Id. at 57-58, 215 A.3d at 315-16.

[69] Id. at 65, 215 A.3d at 320.

[70] Id.

[71] H.B. 1049, 2019 Leg., 439th Sess. (Md. 2019).

[72] Hearing on H.B. 1049, 2019 Leg., 439th Sess. (Md. 2019) (statement of Del. C.T. Wilson).

[73] Md. Code Ann., Crim. Law § 11-207 (West 2019).

[74] See supra note 72.

[75] See In re S.K., 466 Md. at 45 n.15, 215 A.3d at 308 n.15 (Other states that allow teenagers to be charged under the child pornography statute include: Alabama, Alaska, California, Delaware, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Hampshire, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Virginia, Wisconsin, and Wyoming.).

[76] Susan Lee & Lesley Lopez, New Md. Law Fights Child Pornography, but More Must be Done, Balt. Sun (Sep. 23, 2019, 6:00 AM), https://www.baltimoresun.com/opinion/op-ed//bs-ed-op-0923-child-pornography-20190923-ddohiu72yjdwxp25amlcqfgb3a-story.html.

[77] Id.

[78] In re S.K., 466 Md. at 48, 215 A.3d at 310.

[79] The Kojo Nnamdi Show: A Maryland Teen Sent a Racy Video to Friends. The Court Says She Distributed Child Pornography, WAMU 88.5 (Sep. 09, 2019), https://thekojonnamdishow.org/shows/2019-09-09/a-maryland-teen-sent-a-racy-video-to-friends-the-court-says-she-distributed-child-pornography.

[80] Sarah Wastler, The Harm in “Sexting”?: Analyzing the Constitutionality of Child Pornography Statutes That Prohibit the Voluntary Production, Possession, and Dissemination of Sexually Explicit Images By Teenagers, 33 Harv. J. L & Gender 687, 694 (2010).

[81] New York v. Ferber, 458 U.S. 756-58 (1982).

[82] Id.

[83] Id. at 757.

[84] See Wastler, supra note 80; but see Janis Wolak et al., How Often are Teens Arrested for Sexting? Data From a National Sample of Police Cases, 129 Pediatrics 4, 4-12 (2012) (“Another important policy issue is the question of how many youth-produced sexual images are circulated online where they potentially could become fodder for the child pornography trade. Importantly, in nearly two-thirds of cases, images were confined to cell phone storage and transmission and had not been posted online. This does not mean that the images could never find their way to the Internet, but cell phone images are less accessible.”).

[85] John O. Hayward, Hysteria Over Sexting: A Plea for a Common Sense Approach, 14 Atlantic L.J. 60, 65 (2012) (citing Pew Internet & Am. Life Project, Teens and Sexting: How and Why Minor Teens are Sending Sexually Suggestive Nude or Nearly Nude Images Via Text Messaging, Pew Rsch. Ctr. (2009), https://www.pewresearch.org/internet/2009/12/15/teens-and-sexting/).

[86] Id.

[87] Id. at 68 (citing Sexual Teens, Sexual Media: Investigating Media’s Influence on Adolescent Sexuality xi (Jane D. Brown et. al eds., Lawrence Erlbaum Associates 2002)).

[88] In re S.K., 466 Md. 31, 57, 215 A.2d 300, 315 (2019); Cf. Wolak et al., supra note 84, at 4 (Out of 214 “experimental” type youth-produced sexual images cases, 17% of suspects were charged in juvenile court, 5% were charged with state crimes, and none were charged with federal crimes. “Experimental” type images involved no aggravating factors (such as adult recipients, intent to harm, or reckless misuse) and occurred as sexual attention seeking, in romantic relationships, or had no apparent sexual motivation.).

[89] Clay Calvert, Sex, Cell Phones, Privacy and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law, 18 CommLaw Conspectus 1, 24 (2009) (citing Rick Ruggles, Parents Advised to Monitor Children’s Internet Activities, OMAHA

WORLD-HERALD, Mar. 22, 2009, at 4B); see also Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009).

[90] Calvert, supra note 89, at 24 (quoting Dahlia Lithwick, Teens, Nude Photos and the Law, Newsweek, Feb 23, 2009).

[91] See infra Section IV.A.

[92] See infra Section IV.B.

[93] See infra Section IV.C.

[94] Wastler, supra note 80.

[95] See supra note 72.

[96] Hayward, supra note 85, at 72-73.

[97] Chris Lloyd, The Crime of Sexting: A Deconstructive Approach, 27 Info. & Comm. Tech. Law 55, 61-62 (2018) (discussing how revenge pornography differs from sexting).

[98] In re S.K., 466 Md. 300, 48, 215 A.3d 300, 310 (2019).

[99] Id. at 57, 215 A.2d at 315; see also  S.B. 45, 2020 Leg., 440th Sess. (Md. 2020) (proposing amendment to the statute to clarify that “person” and “minor” cannot be the same individual).

[100] Md. Code Ann., Crim. Law § 11-207 (West 2019); see also H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020) (Other bills proposed during the 2020 legislative session have included clarifications surrounding when a minor should be charged under the statute – consensual sexting has been taken under consideration.).

[101] See H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020).

[102] H.B. 1049, 2019 Leg., 439th Sess. (Md. 2019); see also supra note 72.

[103] See supra note 72; see also Mary Graw Leary, Sexting or Self-Produced Child Pornography? The Dialog Continues—Structured Prosecutorial Discretion Within A Multidisciplinary Response, 17 Va. J. Soc. Pol’y & L. 486 (2010).

[104] Hayward, supra note 85, at 81 (citing RIAA v. The People: Five Years Later, Elec. Frontier Found. (Sept. 30, 2008), https://www.eff.org/wp/riaa-v-people-five-years-later).

[105] Hayward, supra note 85, at 72-73 (citing RIAA v. The People: Five Years Later, Elec. Frontier Found. (Sept. 30, 2008), https://www.eff.org/wp/riaa-v-people-five-years-later); Cf. Nicola Döring, Consensual Sexting Among Adolescents: Risk Prevention Through Abstinence Education or Safer Sexting?, 8 Cyberpsychology: J. of Psychosocial Rsch. on Cyberspace 1, 12 (2014) (“[M]any adolescents who already know about possible negative outcomes still engage in sexting.”).

[106] H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020).

[107] Calvert, supra note 89, at 28 (“The law, in fact, recognizes that subtle variations of age do matter when it comes to matters affecting sex and minors.”).

[108] Calvert, supra note 89, at 28-30 (citing how states criminalize statutory rape and sexual abuse of minors differently depending on the age difference between the perpetrator and the victim).             

[109] See supra Section III; Cf. Wolak et al., supra note 88.

[110] In re S.K., 466 Md. 31, 44, 215 3.Ad 300, 308 (2019) (citing Robert H. Wood, The Failure of Sexting Criminalization: A Plea for the Exercise of Prosecutorial Restraint, 16 Mich. Telecomm. & Tech. L. Rev. 151 (2009)).

[111] Id.

[112] John A. Humbach, ‘Sexting’ and the First Amendment, 37 Hastings Const. L.Q. 433, 458 n.142 (2010).

[113] Calvert, supra note 89, at 27-32 (Factors for legislators and prosecutors to consider include the age of the minors involved, whether the sender is depicted in the sext or forwarding a received message, and if it is mutually consensual between the sender and receiver.).

[114] U.S. Dep’t of Just., Justice Manual 9-8.110 (2020) (“With one limited exception . . . , a juvenile cannot be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate United States District Court that (1) the juvenile court or other appropriate state court does not have jurisdiction or refuses to assume jurisdiction over the juvenile with respect to the alleged act of juvenile delinquency; or (2) the state does not have available programs and services adequate for the needs of juveniles; or (3) the offense charged is a crime of violence or an offense described . . . .”).

[115] Hayward, supra note 85, at 111.

[116] See Howard County Public School System, Family Life & Human Sexuality Objectives (2018/2019) (Howard County, Maryland introduces a unit regarding positive ways to manage emotions in its Health classes starting in the sixth grade.).

[117] Id. (Howard County, Maryland introduces a unit regarding interpersonal communication and decision making in the seventh grade, alongside information regarding sexual health.).

[118] Id.

[119] H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020).

[120] Id.

[121] Nathan Jurgenson, Sexting and the Criminalization of Teen Desire, Soc. Lens (Mar. 30, 2011), http://thesocietypages.org/sociologylens/2011/03/30/sexting-and-the-criminalization-of-teen-desire/.

[122] Id.

[123] Id.

[124] Id.

[125] Calvert, supra note 89, at 15 n.67 (citing M. Gigi Durham, The Lolita Effect: The Media Sexualization of Young Girls and What We Can Do About it 48 (2008)).

[126] Calvert, supra note 89, at 15 n.72 (citing M. Gigi Durham, The Lolita Effect: The Media Sexualization of Young Girls and What We Can Do About it 114-15 (2008)) (As in the case of teen pop icon, Brittany Spears, posing in a school-girl uniform in 1998.).

[127] Jessica Ringrose & Laura Harvey, Boobs, Back-off, Six Packs and Bits: Mediated Body Parts, Gendered Reward, and Sexual Shame in Teens’ Sexting Images, 29 J. of Media & Cultural Stud. 205, 214 (2015).

[128] Id.

[129] Id.; see also Andrew J. Harris et al., Building a Prevention Framework to Address Teen “Sexting” Behaviors, Off. of Juv. Just. and Delinq. Prevention (Sep. 2013), https://ojjdp.ojp.gov/library/publications/building-prevention-framework-address-teen-sexting-behaviors. (Describing gendered repercussions of sexting: “Along similar lines, the youth focus group participants routinely cited the divergent reputational impacts on males and females.”).

[130] Ringrose & Harvey, supra note 127.

[131] Hayward, supra note 85, at 104-05.

[132] Id.

[133] H.B. 1245, 2020 Leg., 440th Sess. (Md. 2020) (H.B. 1245 does not require minors engage in counseling when found consensually sexting. It suggests that a comprehensive approach that is both proactive and appropriately reactive is most effective.).

[134] John S. Santelli et al., Abstinence-Only-Until-Marriage Policies and Programs: An Updated Position Paper of the Society for Adolescent Health and Medicine, 61 J. of Adolescent Health 400, 400-03 (2017) (“Sexuality education should be comprehensive, medically accurate, and culturally competent; promote healthy sexuality; and prepare young people to make healthy sexual decisions. Instruction in sexuality education should include essential concepts and issues such as sexual orientation, sexual health, gender identity and power dynamics, intimate partner violence and sexual exploitation, healthy relationships, social and structural determinants, personal responsibility . . . .”). 

[135] Ringrose & Harvey, supra note 127.

[136] Santelli et al., supra note 134.