IN RE: S.K.
Court of Special Appeals of Maryland, Fader, June 5, 2018,
Child Pornography – A juvenile can be convicted of distribution of child pornography even if she is the subject of the pornography
Facts:
A 16-year-old girl (S.K.) sent a video of herself performing fellatio on a (presumably adult) male to two other juveniles (16 and 17).
The other juveniles informed the school resource officer, a deputy with the Charles County Sheriff.
S.K. was charged with filming a minor engaging in sexual conduct, distributing child pornography, and displaying an obscene item to a minor.
A juvenile court found that S.K. was involved in distributing child pornography and displaying an obscene item to a minor.
S.K. appealed, arguing that she couldn’t be convicted of distribution of child pornography where she was a willing participant. S.K. also argued that displaying an obscene item to a minor doesn’t apply to cell phone videos.
Held: The Court of Special Appeals affirmed the child pornography conviction, holding that distribution of child pornography is illegal even if the child is the subject of the video. The Court agreed that displaying an obscene item does not apply to text message videos.
Child Pornography Distribution – A person may not “knowingly… distribute or possess with the intent to distribute any matter… that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct”
Child Pornography – The “subject” of child pornography is defined as “a participant in, or the object of,” sadomasochistic abuse or sexual conduct.
Child Pornography (Distribution) – Child pornography law is “not limited to non-consensual or abusive conduct and it contains no exception where the minor depicted is also the distributor.”
First Amendment – A minor does not have a First Amendment right to distribute pornographic images of herself
Displaying Obscene Material to a Minor – A person may not “willfully or knowingly” show a minor an obscene “item.”
Displaying Obscene Material to a Minor – This statute only applies to obscene material shown to a minor that is:
– a still picture or photograph
– a book, pocket book, pamphlet, or magazine
– a videodisc, videotape, video game, film, or computer disc; or
– a recorded telephone message
Displaying Obscene Material to a Minor – “Film” in this statute refers only to the physical “media on which photographs or videos can be produced.”
Displaying Obscene Material to a Minor – A “digital video file” does not qualify as an “item” under this statute.
From the Case: “S.K.’s transmission of a digital video file by text message from one mobile phone to two others does not fall within the definition of an ‘item’ covered by” the “Displaying Obscene Material to a Minor” law.