[Copyrighted Material Omitted]
Circuit Court for Charles County, Case No. 08-J-17-000023,
Hayward J. West, Judge.
by Claudia Cortese, Assistant Public Defender (Paul B.
DeWolfe, Public Defender of Maryland, Baltimore, MD), on
brief, for Petitioner-Cross-Respondent.
by Sarah Page Pritzlaff, Asst. Atty. Gen. (Brian E. Frosh,
Attorney General of Maryland, Baltimore, MD), on brief, for
before: Barbera, C.J. [*] Greene, McDonald, Watts, Hotten,
Getty, Glenn T. Harrell (Senior Judge, Specially Assigned)
Md. 35] Like all teenagers, S.K. sought to impress and humor
her closest friends. During the 2016-17 school year at
Maurice J. McDonough High School in Charles County, Maryland,
the sixteen-year-old female maintained a group chat on her
cellphone for text messages with her best high school
friends, A.T., another sixteen-year-old female, and K.S., a
seventeen-year-old male. The group chat was used, among other
things, to send silly photos and videos in an effort to
"one-up" each other. The trio hung out together and
trusted one another to keep their group messages private.
of the "one-up" competition, S.K. sent a one-minute
video of herself performing fellatio on a male. Later in the
school year, when there was a falling-out among the trio of
friends, the video was distributed to other students at the
school and shared with the school resource officer. As a
result, the States Attorney for Charles County filed a
juvenile petition [466 Md. 36] alleging criminal charges
against S.K. under Marylands child pornography and obscenity
statutes, Maryland Code, Criminal Law ("CR"), §
11-207(a)(4) and § 11-203(b)(1)(ii) respectively.
matter of first impression, the main issue before this Court
is whether a minor may be adjudicated delinquent under the
current statutory scheme as the "person" who is a
distributor of child pornography and a displayer of obscene
matter when she is also the minor participant in the sex act.
Put more dramatically, can a minor legally engaged in
consensual sexual activity be his or her own pornographer
through the act of sexting? For the reasons explained above,
the language of CR § 11-207 in its plain meaning is
all-encompassing. The General Assembly has not updated the
statutes language since the advent of sexting and thus we
may not read into the statute an exception for minors. As to
a second issue, a cellphone video is a digital file that is
broadly captured under the term "film" in the
enumerated "items" set forth in CR § 11-203.
Therefore, S.K.s conduct is covered by the language of the
the 2016-17 school year, two sixteen-year-old females, A.T.
and S.K., and a seventeen-year-old male, K.S., were best
friends attending Maurice J. McDonough High School in Charles
County, Maryland. S.K. and A.T. had been friends since
elementary school. The trio had a group chat on their
cellphones in which they would communicate with one another
by text message. A.T. stated the group chat was used, among
other things, to send silly photos and videos to
"one-up" each other. The trio frequently hung out
together and trusted one another to keep their group text
October, A.T. and K.S. received a text message containing a
video recording from S.K.s cellphone number. The video was
approximately one minute in length and showed S.K. performing
fellatio on a male. The males identity and age were not
established in the testimony at the adjudication [466 Md. 37]
hearing although A.T. testified that she knew him. In the
video, S.K. is nude and her upper torso, including an exposed
breast, is visible throughout most of the video. The nude
males mid-torso and erect penis are shown during the
majority of the video although an unfocused view of his face
is visible momentarily at the videos conclusion. The male
appears to be the one filming the video through an extended
reach of his arm similar to taking a selfie.
December, S.K. and K.S. had a falling out. Commenting on
the falling out, A.T. testified:
We all used to be friends. And at the time [K.S.] just really
dislikes her. And you can ask anybody in his sixth period
class. Cause we used to eat lunch together. And he would
always write on the board like, saying shes a slut or saying
any type of thing.
began urging A.T. to go with him to the school resource
officer to report the video of S.K. Eventually, A.T.
relented. K.S. testified he was worried about S.K. and wanted
her to receive help. However, A.T. testified that the motives
of K.S. were not so pure. A.T. testified that K.S. was
bragging around school about S.K. going to jail if he were to
report the text message to the school resource officer. She
stated, "he has a strong hate towards her.
And he kinda [sic] just pulled me along with him because he
knew I would be on his side."
and K.S. went to the school resource officer, Officer Eugene
Caballero of the Charles County Sheriffs Office. At the
meeting, A.T. and K.S. told Officer Caballero about the
video. At that point, K.S. possessed the video as an email
attachment. He displayed the email and video on Officer [466
Md. 38] Caballeros computer. Officer Caballero then
instructed K.S. to delete the video from his email account.
receiving a copy of the video from K.S., Officer Caballero
met with S.K. at the Robert D. Stethem Educational Center in
Charles County. S.K. was read her Miranda rights and agreed
to speak with Officer Caballero. In his police report,
Officer Caballero stated S.K. cried during their meeting and
was upset that the video was going around the
school. S.K. was under the impression that
Officer Caballero met with her to stop the video from further
distribution to other students. At no point during this
meeting did Officer Caballero inform S.K. that she was
considered a suspect for criminal activity. S.K. provided
Officer Caballero with a written statement admitting that she
was in the video and had only sent it to her two friends.
police report was referred to the States Attorney for
Charles County who had discretion as to whether to file the
criminal charges. After review, the State charged S.K., as a
juvenile, with three counts as follows: Count 1: filming a
minor engaging in sexual conduct in violation of CR §
11-207(a)(2); Count 2: distributing child pornography in
violation of CR § 11-207(a)(4); and Count 3: displaying an
obscene item to a minor in violation of CR §
adjudicatory hearing was held on April 27, 2017 before the
Circuit Court of Charles County sitting as a juvenile court.
S.K. was represented by the Office of the Public Defender.
A.T., K.S., and Officer Caballero testified during the
hearing. At the conclusion of the hearing, Count 1, filming a
minor engaging in sexual conduct, was dismissed because there
was no evidence presented that S.K. was filming the video. At
the [466 Md. 39] end of closing argument, the juvenile court
found S.K. involved as to Counts 2 and 3.
subsequent disposition hearing on May 18, 2017, S.K. was
placed on electronic monitoring until June 9, 2017 and
supervised probation administered by the Department of
Juvenile Services. S.K.s probation was subject to several
terms and conditions such as: (1) reporting to the Probation
Officer; (2) obtaining permission before changing her home
address or leaving the State; (3) permitting the Probation
Officer to visit her home; (4) submitting to weekly drug
urinalysis; (5) attending and completing anger management
class; (6) submitting to a substance abuse assessment and
following any recommendations; and (7) "level 1
treatment" as recommended. S.K. was not ordered
to register as a sex offender. On September 27, 2018, after
fulfilling her probation requirements, this case was ordered
closed and sealed.
appealed the delinquency finding and subsequent disposition
to the Court of Special Appeals. In a reported opinion, the
Court of Special Appeals held, relevant to the issue before
us, that a minor legally engaged in consensual sexual
activity is not exempted from CR § 11-207(a)(4) and thus is
in violation of the child pornography statute. In re
S.K., 237 Md.App. 458, 473, 186 A.3d 181 (2018). As to
CR § 11-203(b)(1)(ii), the statute prohibiting displaying of
obscene items to minors as applied to juveniles, the Court of
Special Appeals held a digital file did not come within the
meaning of the statutory term "item." Id.
at 487, 186 A.3d 181.
reaching its conclusion, the Court of Special Appeals first
examined the plain language of CR § 11-207(a). [466 Md. 40]
Id. at 466, 186 A.3d 181. Based on its reading of
what it deemed to be the plain language of the statute,
"a minor is engaged as a subject in sexual conduct if
she or he is a participant in, or the object of, such
conduct" and the statute provided no exemption for
minors engaging in the conduct themselves. Id. at
469, 470-471, 186 A.3d 181. The Court of Special Appeals also
considered the governments interest in combating child
pornography, citing the governments concern for preventing
children from becoming the subjects of child pornography.
Id. at 472, 186 A.3d 181 (citing Outmezguine v.
State, 335 Md. 20, 37, 641 A.2d 870 (1994) (hereinafter
"Outmezguine II" ) ("The State
unquestionably has a significant interest in protecting
children, and in prohibiting the use of children as subjects
in pornographic material."). The Court of Special
Appeals engaged in a review of the legislative history
bolstering its conclusion as to the plain meaning of the
statute. Id. at 470, 186 A.3d 181. Further, the
Court of Special Appeals found no exceptions in the statute
such as a limitation to non-consensual or abusive conduct or
an exception when the minor depicted is also the distributor.
Id. at 471, 186 A.3d 181.
the second delinquency finding, the Court of Special Appeals
held that the digital file S.K. sent by text message was not
an "item" covered within the statute. Id.
at 482, 186 A.3d 181. The digital file S.K. sent was not a
still picture, photograph, book, pocket book, pamphlet,
magazine, or recorded telephone message. Id.
Therefore, if it were to fall within the statute, it needed
to be a "videodisc, videotape, video game, film, or
computer disc." Id. at 484, 186 A.3d 181
(quoting CR § 11-203(a)94)(iii)). The Court of Special
Appeals interpreted "film" as a medium on which
images or videos are stored. Id. at 486, 186 A.3d
181. As the remainder of items enumerated are paired with
other physical mediums, the intermediate appellate court
concluded "that the plain meaning of film, in the
context of this statute, refers to that particular type of
media on which photographs or videos can be produced."
Id. Consequently, the intermediate appellate court
held that the cellphone video falls outside the specific list
of items in the statute.
Md. 41] S.K. filed a petition for writ of certiorari with
this Court which was granted on October 9, 2018. In re
S.K., 461 Md. 483, 194 A.3d 936 (2018). In addition, the
State filed a conditional cross-petition for writ of
certiorari, which was granted. Id. Together, they
present two questions for our review. We have rephrased the
questions as follows:
1. Did the juvenile court err in finding 16-year-old S.K.
involved in distributing child pornography as proscribed by
CR § 11-207(a)(4)?
2. Did the juvenile court err in finding S.K. involved in the
offense of displaying an obscene item to a minor as
proscribed by CR § 11-203(b)(1)(ii)?
the first question presented, we hold that S.K.s sexting is
within the purview of our current statutory scheme,
therefore, the juvenile court did not err in finding S.K.
delinquent under CR § 11-207(a)(4). Thus, the judgment of the
Court of Special Appeals as to the first question presented
is affirmed. As to the second question, the video text
message falls within the definition of an "item"
and thus, S.K.s conduct is within the purview of CR §
11-203(b)(1)(ii). Therefore, we reverse the judgment of the
Court of Special Appeals for the crime of displaying an
obscene item to a minor.
STANDARD OF REVIEW
reviewing a juvenile delinquency case, "the judgment of
the [juvenile court] will not be set aside on the evidence
unless clearly erroneous and due regard will be given to the
opportunity of the [juvenile] court to judge the credibility
of the witnesses." [466 Md. 42] Dixon v. State,
302 Md. 447, 450, 488 A.2d 962 (1985). When reviewing the
juvenile courts interpretation of a statute, however, the
interpretation of a statute is a question of law that we
review without deference. Brown v. State, 454 Md.
546, 550, 165 A.3d 398 (2017) (citing Bellard v.
State, 452 Md. 467, 480-81, 157 A.3d 272 (2017)).
the first time, this Court is confronted with the
complexities of the sociocultural phenomenon of sexting by
minors in the context of Marylands criminal statutes as
applied in a juvenile proceeding. We are asked to determine
whether it is a violation of the child pornography statute
for a sixteen-year-old minor female to distribute a
one-minute video via text message to her best friends in
which she is engaging in sexual conduct that is not criminal.
Further, we are asked whether the distribution of the text
message video qualifies as an "item" codified in
the obscenity statute criminalizing the display of obscene
matter to a minor.
to this issue is the dominant role cellphones play in our
society. In Riley v. California, Chief Justice John
Roberts observed that "modern cellphones ... are now
such a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an
important feature of human anatomy." 573 U.S. 373, 134
S.Ct. 2473, 2484, 189 L.Ed.2d 430 (2014). Undoubtedly,
smartphone use has become ubiquitous across all generations.
However, Generation Z, loosely comprising of those born after
1997, has a distinctive relationship with this technology.
Unlike the Silent Generation, Baby Boomers, Generation X, or
Millennials, Generation Z has never known life without access
to a smartphone.
ninety-five percent of teens have access to smartphones and
ninety-seven percent of teens use at least one of the seven
major online platforms. Forty-five percent of teenagers
[466 Md. 43] report to be online on a virtually constant
basis. This technology has changed
communication patterns among our teenagers. Rather than make
a phone call, forty-nine percent of teenagers indicate that
text messaging is their first choice for communicating with
their closest friend. In a 2010 study, one in three teenagers
sends more than one hundred text messages a day, or
three-thousand text messages a month.
is a sociocultural phenomenon that has evolved from the use
of smartphones. Blacks Law Dictionary identifies the origin
of the word "sexting" in the year 2005 and defines
it as "the sending of sexually explicit messages or
images by cellphone." Consistent with the
rise in smartphone usage, at least 18.5% of middle and high
schoolers report having received sexually explicit images or
videos on their phones or computers. There is no
indication this trend will decrease as the pervasiveness of
technology in our lives continues.
Md. 44] As sexting has grown in popularity, so has the
attention given to the issue. As early as 2007, the legal
community began to debate what was coined "self-produced
child pornography." Compare Mary Graw Leary,
Self-Produced Child Pornography: The Appropriate Societal
Response to Juvenile Self-Sexual Exploitation, 15 Va. J.
Soc. Poly & L. 1 (2007) with Stephen F. Smith, Jail for
Juvenile Child Pornographers?: A Reply to Professor
Leary, 15 Va. J. Soc. Poly & L. 505 (2008). In 2009, in
response to the national attention focused
on teenage sexting, additional legal scholars began to
address the issue by distinguishing this activity from child
pornography and discussing appropriate sanctions. See,
e.g., 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 (2009); Robert H. Wood, The Failure of
Sexting Criminalization: A Plea for the Exercise of
Prosecutorial Restraint, 16 Mich. Telecomm. & Tech.
L.Rev. 151 (2009); W. Jesse Weins & Todd C. Hiestand,
Sexting, Statutes, and Saved by the Bell: Introducing a
Lesser Juvenile Charge with an "Aggravating
Factors" Framework, 77 Tenn. L.Rev. 1 (2009). These
articles sought to survey the issue and suggest potential
legislation to address this unique phenomenon.
Md. 45] In addition to the attention many legal scholars gave
the issue, other states responded with specific legislation
addressing teenage sexting. States have addressed
this issue by including provisions such as separate offenses
applied to minors, affirmative defenses for minors, and lower
penalties if the minor is found delinquent. The lower
"penalties" include services like classes
specifically addressing sexting and phone usage, community
service, and counseling. Although the majority of states have
passed legislation to amend their child pornography statute
relative to sexting, Maryland is one of twenty-one states
that have not passed any such legislation and thus permit
teenagers to be charged under the child pornography
other state courts have considered the breadth of their child
pornography statute vis-à-vis sexting. In State v.
Gray, the Washington Supreme Court addressed whether a
seventeen-year-old boys act of "electronically sending
an unsolicited picture of his erect penis to an adult
woman" violated [466 Md. 46] the language of Wash. Rev.
Code § 9.68A.050(2)(a) that "[a] person commits the
crime of dealing in
depictions of a minor engaging in sexually explicit conduct
in the second degree when he or she ... [k]nowingly ...
disseminates ... any visual or printed matter that depicts a
minor engaged in an act of sexually explicit conduct."
189 Wn.2d 334, 337, 402 P.3d 254 (2017). The majority upheld
the conviction, holding that the statute was unambiguous,
thus the minors conduct violated the statute.
Id. ("Therefore, when any person, including a
juvenile, develops, publishes, or disseminates a visual
depiction of any minor engaged in sexual conduct, that
persons actions fall under [RCW 9.68A.050]s
court determined there was nothing under the statute which
indicated a natural person and a minor cannot be the same
person. Id. at 341, 402 P.3d 254. Further, if the
Washington State Legislature had intended to exclude minors,
it would have explicitly done so. Id. at 342, 402
P.3d 254. As to the policy arguments, the court commented:
We understand the concern over teenagers being prosecuted for
consensually sending sexually explicit pictures to each
other. We also understand the worry caused by a well-meaning
law failing to adapt to changing technology. But our duty is
to interpret the law as written and, if unambiguous, apply
its plain meaning to the facts before us.
Id. In sum, the Washington court recognized that as
the statute was unambiguous, the statute applied to the minor
unless the legislature passed a remedial statute.
recent Colorado case, a male teenager was romantically
involved with two female teenagers during the 2012-2013
school year. People in Interest of T.B., 445 P.3d 1049
(Colo.2019). He exchanged nude selfies by text message with
the females. The male kept the photos on his cellphone, and,
when he was arrested in 2013 on an unrelated sexual assault
charge, police discovered the photographs of the nude females
on his [466 Md. 47] cellphone. Id. He was charged
and adjudicated delinquent for sexual exploitation of a child
under section 18-6-403(3), C.R.S. (2018). Id. The
majority upheld the conviction.
majority determined the statute was not ambiguous and refused
to read into the statute an exemption for minors. In addition
to the plain language, the court reviewed the legislative
history, concluding that "nothing ... suggests that such
harms are lessened or do not exist merely because the
sexually exploitive material is made, possessed, or
distributed by a juvenile rather than an adult."
Id. at 1058, at *9.
sexting, specifically when engaged in by teenagers, has been
addressed extensively in the literature, the media, and by
state legislatures in other jurisdictions, the General
Assembly has not updated Marylands statutes to address this
contemporary issue. For context, CR § 11-207 has not received
a substantial revision by the General Assembly since 1986 and
CR § 11-203 not been revised by the General Assembly since
2006. The present case turns on whether a
minor who privately distributes a video to her friends in
which she is depicted engaging in an act that in itself is
not illegal may be deemed delinquent under CR § 11-207(a)(4)
or CR § 11-203(b)(1)(ii). We will review each statute in
Md. 48] A. The Plain Language of CR§ 11-207(a)(4)Subsumes Situations
Where a Minor Produces and Distributes Pornographic ...