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In re S.K.

Court of Appeals of Maryland

August 28, 2019

IN RE: S.K.

          Argued: February 1, 2019

          Circuit Court for Charles County Case No. 08-J-17-000023

          Barbera, C.J. [*] Greene, McDonald, Watts, Hotten, Getty, Harrell, Glenn T. (Senior Judge, Specially Assigned) JJ.

         Sexting. (2005) the creation, possession, or distribution of sexually explicit images via cellphones. • The term is a portmanteau of sex and texting. Black's Law Dictionary, 11th Edition, 2019

          OPINION

          GETTY, J.

         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.

         As part 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 State's Attorney for Charles County filed a juvenile petition alleging criminal charges against S.K. under Maryland's child pornography and obscenity statutes, Maryland Code, Criminal Law ("CR"), §11-207(a)(4) and §11-203(b)(1)(ii) respectively.

         As a 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 statute's 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 obscenity statute.

         BACKGROUND

         During 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 messages private.

         In 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 male's identity and age were not established in the testimony at the adjudication 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 male's 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 video's conclusion. The male appears to be the one filming the video through an extended reach of his arm similar to taking a selfie.[1]

         In December, S.K. and K.S. had a falling out.[2] 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 she's a slut or saying any type of thing.

         K.S. 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."

         A.T. and K.S. went to the school resource officer, Officer Eugene Caballero of the Charles County Sheriff's 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 Caballero's computer. Officer Caballero then instructed K.S. to delete the video from his email account.

         After 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.[3] 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.

         The police report was referred to the State's 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 § 11-203(b)(1)(ii).

         The 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 end of closing argument, the juvenile court found S.K. involved as to Counts 2 and 3.[4]

         At a 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"[5] 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.

         S.K. 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 (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.

         In reaching its conclusion, the Court of Special Appeals first examined the plain language of CR § 11-207(a). Id. at 466. 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. The Court of Special Appeals also considered the government's interest in combating child pornography, citing the government's concern for preventing children from becoming the subjects of child pornography. Id. at 472 (citing Outmezguine v. State, 335 Md. 20, 37 (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. 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.

         As to 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. 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 (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. 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.

         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 (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:[6]

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)?

         As to 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

         In 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." Dixon v. State, 302 Md. 447, 450 (1985). When reviewing the juvenile court's 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 (2017) (citing Bellard v. State, 452 Md. 467, 480-81 (2017)).

         DISCUSSION

         For the first time, this Court is confronted with the complexities of the sociocultural phenomenon of sexting by minors in the context of Maryland's 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.

         Central 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." 134 S.Ct. 2473, 2484 (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.

         Today, 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.[7] Forty-five percent of teenagers report to be online on a virtually constant basis.[8] 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.[9]

         Sexting is a sociocultural phenomenon that has evolved from the use of smartphones. Black's 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."[10] 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.[11] There is no indication this trend will decrease as the pervasiveness of technology in our lives continues.

         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. Pol'y & L. 1 (2007) with Stephen F. Smith, Jail for Juvenile Child Pornographers?: A Reply to Professor Leary, 15 Va. J. Soc. Pol'y & L. 505 (2008). In 2009, in response to the national attention[12] 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.[13]

         In addition to the attention many legal scholars gave the issue, other states responded with specific legislation addressing teenage sexting. [14] 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 statute.[15]

         Occasionally, 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 boy's act of "electronically sending an unsolicited picture of his erect penis to an adult woman" violated 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 Wash.2d 334, 337 (2017). The majority upheld the conviction, holding that the statute was unambiguous, thus the minor's conduct violated the statute.[16] Id. ("Therefore, when any person, including a juvenile, develops, publishes, or disseminates a visual depiction of any minor engaged in sexual conduct, that person's actions fall under [RCW 9.68A.050]'s provisions.").

         The court determined there was nothing under the statute which indicated a natural person and a minor cannot be the same person. Id. at 341. Further, if the Washington State Legislature had intended to exclude minors, it would have explicitly done so. Id. at 342. 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.

         In a 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., 2019 WL 2495514 (June 17, 2019 Co.). 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 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.[17]

         The 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 *9.

         While 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 Maryland's 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.[18] 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 turn.

         A. The Plain Language of CR § 11-207(a)(4) Subsumes Situations Where a Minor Produces and Distributes Pornographic Material of Himself or Herself.

         In the mid-1970s, the federal government and state governments determined a need to focus their legislation "on the use of children as the subjects of pornographic material." Outmezguine v. State, 97 Md.App. 151, 159 (1993) (hereinafter "Outmezguine I"), aff'd 335 Md. 20 (1994). Previously, states had focused on obscenity in general, but this period was the first time the statutes were targeting the involvement of minors in the commercial production and trade of child pornography. Id. In 1977, Congress passed the Protection of Children Against Sexual Exploitation Act to address the interstate nature of this pornography. Id. at 160. The Act in part was protecting "highly vulnerable children' . . . frequently the 'victims of child abuse, or of broken homes, or of parents who simply do not care.'" Id. (quoting S. Rep. No. 95-438 (1977), U.S. Code Cong. & Admin. News 1978, pp. 40, 46). At that time, "only six States then had statutes proscribing the use of children in the production of pornographic material and [] no Federal law [existed that] dealt directly with 'the abuse of children that is inherent in the production of such materials.'" Id. As a result of the federal legislation, many states followed suit and enacted their own statutes. The General Assembly enacted Maryland's first child pornography statute in 1978.

         Also guiding our interpretation is the constitutional case of New York v. Ferber, 458 U.S. 747 (1982). The Court in Ferber held "that the First Amendment permits a state to proscribe the distribution of sexual materials involving minors without regard to an obscenity standard." Moore v. State, 388 Md. 446, 461 (2005) (citing Ferber, 458 U.S. at 760-61). The Supreme Court has recognized that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Ferber, 458 U.S. at 757. As to the dangers of child pornography, the Supreme Court stated:

The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.

Id. at 759-60.

         With this historical backdrop, we now turn to an analysis of the statute. This Court provides judicial deference to the policy decisions that the General Assembly enacts into law. See Blackstone v. Sharma, 461 Md. 87, 113 (2018). "We assume that the legislature's intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly." Phillips v. State, 451 Md. 180, 196 (2017). As we have previously stated:

When conducting a statutory construction analysis, we begin "with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology." Schreyer v. Chaplain, 416 Md. 94, 101 (2010) (quoting Adventist Health Care Inc. v. Maryland Health Care Comm'n, 392 Md. 103, 124 n.13 (2006)). When the "words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia[.]" State v. Bey, 452 Md. 255, 266 (2017). Moreover, after determining a statute is ambiguous, "we consider the common meaning and effect of statutory language in light of the objective and purposes of the statute and Legislative intent." Stachowski v. Sysco Food Servs. Of Baltimore, Inc., 402 Md. 506, 517 (2007).

Blackstone, 461 Md. at 113.

         In addition to the plain language, the modern tendency of this Court is to continue the analysis of the statute beyond the plain meaning to examine "extrinsic sources of legislative intent" in order to "check [] our reading of a statute's plain language" through examining "the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments." Brown v. State, 454 Md. 546, 551 (2017) (quoting Phillips v. State, 451 Md. 180, 196-97 (2017) (internal quotation marks omitted)); see also Ingram v. State, 461 Md. 650 (2018); Balt. City Det. Ctr. v. Foy, 461 Md. 627 (2018); C&B Constr., Inc. v. Dashiell, 460 Md. 272 (2018); Watts v. State, 457 Md. 419 (2018); Ben-Davies v. Blibaum and Assocs. P.A., 457 Md. 228 (2018); Comm'r of Fin. Regulation v. Brown, Brown & Brown P.C., 449 Md. 345 (2016).

         In the context of interpreting and applying criminal statutory law, we have stated that "no [person] incurs a penalty unless the act which subjects him [or her] to it, is clearly, both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction." Howell v. State, 278 Md. 389, 392 (1976). Further, "[c]ourts may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, and the history of the growth or evolution of the particular provision under consideration." State v. Phillips, 457 Md. 481, 488 (2018) (quoting Johns Hopkins v. Williams, 199 Md. 382, 386 (1952)).

         The 1978 child pornography statute as amended, CR §11-207(a)(4)(i), prohibits a "person" from knowingly distributing "any matter, visual representation, or performance . . . that depicts a minor engaged as a subject in . . . sexual conduct." Sexual conduct is defined in CR § 11-101(d) as (1) human masturbation; (2) sexual intercourse; or (3) whether alone or with another individual or animal, any touching of or contact with: (i) the genitals, buttocks, or pubic areas of any individual; or (ii) breasts of a female individual." The entirety of CR § 11-207(a) provides that "a person may not:"

(1) cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct;
(2) photograph or film a minor engaging in an obscene act, sadomasochistic abuse, ...

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