Safety Sync: Fixing the Sexting Laws in Maryland

Jan 07th, 2020

By: Delegate David Moon, Member of the Maryland House of Delegates from the 20th District

This summer Maryland laws once again went viral in the national news, and the reason was once again unflattering. The cause for media scrutiny this time was due to our state’s Court of Appeals upholding criminal child porn charges against a 16-year-old-girl (In re: S.K., Ct of Appeals, August 28, 2019). What caused the head-scratching and disbelief, however, is that the alleged perpetrator and victim of these teen sexting “crimes” are one and the same. Did the student take heinous photographs of children and distribute them throughout her high school?  No - she sent a sext. Of herself.

“Sexting” (“sex” + “texting”, for the uninitiated) is the act of electronically sending or receiving sexually explicit photos, texts, or video messages. In this case, the student sent a video message of herself performing oral sex on an unidentified male to two of her close friends.  Eventually one of the friends, without permission, chose to distribute the video throughout their high school. The prosecutor who sought these charges -- and now the Court of Appeals -- have turned our state’s child porn laws on their head. With this precedent, our child porn laws are now being used against those they are meant to protect, and the consequences could be wide-ranging.

A recent study published in JAMA Pediatrics surveyed more than 110,000 teens and found about 27% of teens have admitted to receiving a sext.  This is believable,  if not an underestimate, considering most teens have access to a cell phone, and a simple Google search generates over 21 million results for “how to sext”.

In this student’s case, a school resource officer, who was a staff member at the County Sheriff’s Office, was made aware of the video clip.  When the student met with the resource officer, she justifiably expected the officer would help stop distribution of the video.  She felt embarrassed and never intended for anyone other than her friends to see it. Instead, the resource officer considered the student to have committed criminal activity.  A police report was filed.  Then, astonishingly, the county State’s Attorney office decided to go forward and file a juvenile petition alleging criminal charges against the student under Maryland’s child pornography and obscenity laws.[1

The student missed a month of school due to the stress of knowing fellow students had seen the sext.  On top of that, the court process piled further attention, shame, and pressure on to a young teenager, who had already been victimized. Juvenile court proceedings only amplified her anguish.  Instead of helping “S.K.”, the system punished her even more. She was found responsible of the alleged offenses; she was punished for merely sending a consensual sext intended for two other sets of eyes.

Clearly child pornography is a serious crime. The sexual abuse of children by photographing their abuse can never be condoned. But prosecuting consenting teenagers for sexting with other teenagers is not the solution.  Instead, teens need education about the risks of sexting and why they should refrain from sending people nude images.  Moreover, the law needs to be concerned that the teen who creates these images may be facing pressure to do so.  While repealing criminal charges against teen sexting, we must also protect minors from being manipulated or coerced into taking or sending sexually graphic images.  Care must also be taken to balance the need to protect flirtatious sharing of images with one person, on the one hand, and setting a clear prohibition on the recipient republishing the image to others. 

During the 2020 legislative session, I’ll be introducing legislation to balance these competing interests and make it clear that Maryland takes a hard line against child pornography, against pressuring young people to create images, and against sharing images that were meant to be private.  But the bill will also make it clear that teenagers who create or receive an image as part of a consensual relationship are not criminals.  They are kids.  They need education, not punishment.  Please join Senator Susan Lee and I and support our efforts.  We are both longtime champions of efforts to end sexual violence and look forward to continuing to work together.

References:

Anderson, M., and Jiang, J. (2018). Teens’ social media habits and experiences. Pew Research Center. https://www.pewinternet.org/2018/11/28/teens-social-media-habits-and-experiences/#fn-21827-1

Madigan, S., Ly, A., Rash, C., Van Ouytsel, J., and Temple, J. (2018) Prevalence of multiple forms of sexting behavior among youth: A systematic review and meta-analysis. JAMA Pediatr. 2018;172(4):327–335. doi:10.1001/jamapediatrics.2017.5314


[1] Maryland Code, Criminal Law Article, §11-207(a)(4) and §11-203(b)(1)(ii) respectively.

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