Court Says Minor Can Be Prosecuted for Sexting
A law designed to protect minors from child pornography was used to prosecute a Maryland high school student for sexting
During the 2016-17 school year, a high school student with the initial S.K. posted in a group chat for her cell phone a one-minute video of herself performing fellatio on some unknown male. In other words, SK engaged in the practice known as “sexting.” When SK and her two friends had a falling out, the friends reported the video to the school resource officer.
The police and prosecutor in Charles County, Maryland, had several options. They could have counseled SK. They could have tried to ensure that the video did not continue to be distributed. They could have warned SK’s friends not to distribute the video.
Or, they could prosecute SK for filming a minor engaging in sexual conduct, distributing child pornography and displaying an obscene item to a minor. They chose the latter. The first count of filming was dismissed because the state could not prove that SK filmed the video. But they prosecuted the teenager for sending the video of herself to her friends—both of whom were, themselves, minors. There was no indication that the state was considering the male to be the “victim,” and there was no evidence of the age of the male depicted. The state took the position that, by sending nude pictures of herself, she was creating and distributing child pornography to minors.
On Aug. 29, a Maryland appeals court ruled that SK did violate those statutes and that it made no difference whether the statute was actually designed to protect minors from being abused—the wording of the statute made creation and distribution of child pornography illegal. The court recognized that just less than 20% of all high school students report having received sexually explicit images from others. But the court concluded that the statute permitted prosecution. Indeed, the court noted that if a minor took explicit pictures of themselves but never disseminated them to anyone, they would be guilty of possession of child pornography and subject to arrest and prosecution. Even if the purpose of the statute was to protect minors from exploitation, the wording of the statute permitted SK to be prosecuted as a pornographer, a distributor and as a manufacturer.
It’s all in the wording. The court had no problem “modernizing” the statute, which prohibited the distribution of “film” to include digital files (even though there was no emulsion or “film” involved) but would not go so far as to recognize that a teenager sexting a picture of herself to a friend or boyfriend is not the same as an adult taking lascivious pictures of a child for sexual gratification or profit. The law is the law. The only good thing is that SK was not required to register as a sex offender, but the case does not explain why.
There are lots of ways that sexting is harmful. It can damage the reputation of those who are depicted in the images. It can be used for harassment, threats, extortion or intimidation. It can even damage those who are exposed to it. But for the most part, sexting is a social issue to be dealt with by counselling and understanding. The case cites numerous cases in which prosecutors have demanded that minors who take pictures of themselves be prosecuted and incarcerated. In other words, this is not an isolated incident.
Maryland, like many other states, has no problem updating its child pornography laws to make them harsher. Recently, the state updated the law to make it a crime to create or publish images that were “virtually indistinguishable” from child pornography except that no actual child was photographed (deepfake law), even though the Supreme Court had previously ruled that “virtual child porn” was protected speech. But with new technology comes new law and new legal challenges.
Except that the law doesn’t change that fast. SK was prosecuted under a statute that was intended to protect her from harm, and there was nothing in the statute that prevents that. It’s a case of new wine in old bottles, but it’s an ill fit and a wrong-headed use of criminal justice resources. And an all-too-common one at that.
