Maryland Needs To Overhaul Their Child Pornography Laws

In many cases around the country, teens have been convicted for exchanging photos with their significant others. It’s quite easy to simply state sexting should be stopped. However, it’s difficult to state that an adolescent teen sending a photo of themselves to their significant other should receive a 10- year sentence and a felony conviction. It’s also quite a stretch to believe somehow this is protecting children from exploitation.

On August 28th, 2019, the Maryland Court of Appeals upheld a lower court’s decision to convict a 16-year-old girl with distributing child pornography and displaying an obscene item to a minor. According to the court ruling, In re: S.K., the girl shared a video of herself, filmed by a third party, with two of her close friends. In the video, the defendant was performing fellatio on an unidentified male.

A falling out between friends lead to one of them reporting the video to the school resource officer from the Charles County Sheriff’s Office. The officer filed a police report, including a written statement from the defendant which admits she was in the video and she sent it to her friends. The state’s attorney office then filed three counts of criminal charges.

At the conclusion of the hearing, count 1, filming a minor engaging in sexual conduct, was dismissed because there was no evidence presented that the defendant was filming the video. At the end of closing argument, the juvenile court found the defendant guilty as to counts 2 and 3.

The Problem with this Ruling

The laws that the defendant was charged with were written and passed with the intent to protect minors against exploitation and abuse at the hands of adults. These laws should not be used to convict teenagers of engaging in normal, healthy activities for people their age. Activities which are becoming increasingly common with the technological advances of the past decade and the technical know-how of today’s teenagers. In upholding this ruling, the courts are essentially convicting the defendant as her own pornographer, as the defense attorney argued on appeal. By entering the defendant into the criminal justice system, the court is acting counterintuitively to what the law’s original intent was – to protect minors.

Where the Majority Opinion got it Wrong

In the majority opinion, Judge Joseph M. Getty cites the Washington State Supreme Court case State v. Gray to make the point that it is the court’s duty is to interpret the law as written and, if unambiguous, apply its meaning to the facts at hand. Getty then goes on to conclude that the statutes are unambiguous and determines that the guilty ruling is to be upheld.

The definition of unambiguous is “not open to more than one interpretation.” The fact that there wasn’t a unanimous ruling in Maryland Court of Appeals, the lone dissenter being Judge Michele D. Hotten, logically concludes that the Maryland law on child pornography is open to more than one interpretation and thus, open to judicial interpretation. At this time, Judge Getty should have concluded that the Maryland General Assembly could not have meant for the laws to be used to charge minors with violations of law, as the laws were written at a time prior to the smartphone phenomenon of teenage sexting and based on the plethora of legal writings that differentiate teenage sexting from child pornography.

Judge Getty’s opinion did include a recommendation for Maryland to update their child pornography laws to exclude minors, as the Maryland General Assembly is one of 21 state legislatures who have not done this already. States that have updated their laws have incorporated separate offenses applied to minors, affirmative defenses for minors, and lower penalties if the minor is found delinquent, such as educational classes or community service. While the sentiment of this suggestion is nice, it does nothing to help the defendant in this case.

Future Implications

Based on this ruling, as well as Judge Getty’s recommendation to change the law, it is likely that the Maryland legislature will amend this statute in the near future to include specifications for minors and how they share images and videos in the modern age. Until this amendment is passed, teenagers across Maryland could continue to face the negative implications of an outdated and unjust law. In order to avoid facing similar charges as S.K., minors should avoid taking and sending explicit photos and videos. It’s important to remember that after you send the image or video once, you can’t control where it goes next.

Last but not least, it’s important to know the laws in your state and to contact a knowledgeable attorney to go over any defenses you may be able to explore. Contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland or the District of Columbia provide a free, confidential evaluation of your case.