In Maryland, you can be prosecuted for exploiting…yourself
By Zachary Margulis-Ohnuma
In the latest perversion of the laws against child pornography, Maryland’s highest court late last month upheld the conviction of a teenage girl for sending around a one-minute video of herself performing fellatio.
The recipient of the fellatio was not prosecuted.
Neither were the girl’s erstwhile friends who, after a falling out, may have distributed the video (the court, in a lengthy decision, pointed out that the video was originally distributed in a super-private group chat with two friends, only one of whom later became hostile to the girl in the video).
The video ended up on the phones of other classmates, the school resource officer, and, ultimately, the State’s Attorney. An officer from the Charles County Sheriff’s Office was dispatched to “interview” the girl in the video. She confessed.
The brilliant legal minds in the Charles County prosecutor’s office charged the 16-year-old, known as S.K., with three criminal counts of child pornography and obscenity. The case reached the Maryland high court last year and was decided in August. It is known as In re: S.K. and can be found here.
The Maryland Court of Appeals performed some mental gymnastics to conclude that state’s child porn and obscenity statutes can be used to prosecute the person distributing child pornography, even if she was the victim.
Of course, this was wrong.
As a dissenting judge pointed out based on a careful analysis of Maryland’s statutes, the laws against child pornography and obscenity are intended to protect victimized children, not to prosecute them: “In the case at bar, S.K. was not being exploited by someone else. She made a video depicting consensual sexual conduct,” wrote Judge Michele D. Hotten. “The General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution…. Rather, the statute contemplates protecting children from the actions of others that bear negatively upon them.”
Judge Hotten continued: “It is clear that S.K. suffered immense distress after learning that the digital file had been circulated among peers—such distress that she could not fathom going back to school for an entire month….It therefore seems counterintuitive to further subject S.K. to prosecution under a statute that was designed to protect her.”
The court did not reach the question of whether the prosecution of S.K. for taking a picture of herself was constitutional. The law, as interpreted by the majority to apply to prosecute the person depicted, seems ripe for challenge under the First, Fifth, and Fourteenth Amendments. And the court never questioned why the kids who tormented S.K. by distributing the pictures were left to go about their business.
It seems obvious that S.K. did not think she might be prosecuted as a juvenile delinquent for sexting her two friends. She had the courage to fight this absurd application of the law all the way to the state’s highest court. Shame that the majority there did not have the courage to listen to her.