186 A.3d 181
Md. Ct. Spec. App.2018Background
- 16-year-old S.K. texted a ~1-minute digital video of herself performing fellatio to two friends (ages 16 and 17); both received and viewed it and later shared it with a school resource officer.
- The State charged S.K. in juvenile court with filming a minor in sexual conduct, distributing child pornography (§ 11-207(a)(4)), and displaying an obscene item to a minor (§ 11-203(b)(1)(ii)).
- The juvenile court dismissed the filming charge but adjudicated S.K. "involved" for distribution of child pornography and for displaying an obscene item to a minor.
- S.K. appealed both adjudications. The appellate issue split on statutory interpretation (scope of “engaged as a subject” and what constitutes an “item”) and a First Amendment challenge.
- This Court affirmed the distribution-of-child-pornography adjudication and vacated the displaying-an-obscene-item adjudication, remanding for disposition.
Issues
| Issue | Plaintiff's Argument (S.K.) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether § 11-207(a)(4)(i) covers material when the distributor is also the minor depicted | "Subject" requires lack of lawful consent or coercion; statute wasn’t meant to punish minors for self-depicted consensual acts | "Subject" means a person depicted or the object/participant of the conduct; statute prohibits distribution of matter that depicts a minor as a subject regardless who distributes | Held: § 11-207(a)(4)(i) applies; S.K. was a subject and no exception exists for self-depicted consensual material; adjudication affirmed |
| Whether "engaged as a subject" requires nonconsensual or abusive conduct | Statute targets abusers, not minors who consensually participated | Plain text covers any depiction of a minor as a subject; legislative history does not create an exemption | Held: no statutory exception for consensual self-produced images; statute unambiguous |
| Whether First Amendment protects distribution of a minor’s self-produced sexual image | Non-abusive, non-obscene depiction of consensual conduct is protected speech | Child pornography involving real minors is categorically unprotected even if not obscene | Held: distribution of pornographic images of real minors is not protected speech under Ferber and its progeny; constitutional challenge fails |
| Whether S.K.’s texted digital video is an "item" under § 11-203(a)(4) (thus showing an obscene item to a minor) | A digital video file is a "film"/motion picture and falls within the enumerated list | The statutory list enumerates types of physical media; digital files sent electronically are not among the listed items | Held: "item" is limited to the specifically enumerated media (physical media); a texted digital file is not covered; the § 11-203 adjudication vacated |
Key Cases Cited
- New York v. Ferber, 458 U.S. 747 (Sup. Ct.) (child pornography involving real children is categorially unprotected speech)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (Sup. Ct.) (distinguishes virtual or non-photographic depictions from pornographic depictions of real children)
- United States v. Williams, 553 U.S. 285 (Sup. Ct.) (criminalizing pandered or believed-to-be child pornography addressed to real children remains valid)
- United States v. Stevens, 559 U.S. 460 (Sup. Ct.) (refuses to create new categories of unprotected speech; treats child pornography as a long-established exception)
- Osborne v. Ohio, 495 U.S. 103 (Sup. Ct.) (upholds broader measures to combat child pornography including possession prohibitions)
- Outmezguine v. State, 335 Md. 20 (Md. 1994) (discusses State interest in prohibiting use of children as subjects of pornographic material)
- Moore v. State, 388 Md. 446 (Md. 2005) (statutory interpretation principles; avoid rendering language superfluous)
- State v. Gray, 402 P.3d 254 (Wash. 2017) (state high court applying similar statute holds dissemination by the depicted minor falls within statute)