In Re: S.K.
No. 617
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2017. Filed: June 5, 2017
Opinion by Fader, J.
Circuit Court for Charles County Case No. 08-J-17-000023 REPORTED. Arthur, Fader, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.
In Re: S.K., No. 617, Sept. Term, 2017. Opinion by Fader, J.
DISTRIBUTION OF CHILD PORNOGRAPHY –
Juvenile court did not err in finding a minor involved in the distribution of child pornography under
CONSTITUTIONAL LAW – FIRST AMENDMENT –
The
STATUTORY CONSTRUCTION –
STATUTORY CONSTRUCTION –
The juvenile court erred in finding that a minor who distributed to other minors a digital video file depicting sexual conduct was involved in displaying an obscene item to a minor under
BACKGROUND
S.K. sent the digital file at issue to A.T., another 16-year-old girl, and K.S., a 17-year-old boy. A.T. and K.S. each received the video and viewed at least part of it. The three then-friends, who regularly exchanged “silly” videos and attempted to “outdo” one another, trusted each other to keep these group messages private. Two months later, after the three had a falling out, K.S. and A.T. reported the incident to, and shared a copy of the video with, Officer Eugene Caballero of the Charles County Sherriff‘s Office, their school resource officer. Officer Caballero met with S.K., who acknowledged having sent the video to K.S. and A.T. S.K. expressed concern to Officer Caballero that other people had seen the video because, according to both S.K. and A.T., K.S. had by that time shared the video with other students.
The State charged S.K. with (1) filming a minor engaging in sexual conduct in violation of
At the adjudicatory hearing, after taking testimony from A.T., K.S., and Officer Caballero and viewing the video, the juvenile court granted S.K.‘s motion for acquittal as to the offense of filming a minor engaged in sexual conduct, but found S.K. involved in distributing child pornography and displaying an obscene item to a minor. In a subsequent disposition hearing, the court found S.K. to be delinquent and placed her on probation with several conditions, including that she undergo a psychiatric evaluation. S.K. appeals those findings.
DISCUSSION
We apply the same evidentiary standard in juvenile delinquency cases that we apply in criminal cases. In re Elrich S., 416 Md. 15, 30 (2010). “[T]he judgment of the [trial court] will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses.” Brown v. State, 234 Md. App. 145, 152 (2017) (quoting Dixon v. State, 302 Md. 447, 450 (1985)). “When the trial court‘s order ‘involves an interpretation and application of Maryland statutory and case law,‘” we review the trial court‘s legal conclusions de novo. Nesbit v. Gov‘t Employees Ins. Co., 382 Md. 65, 72 (2004) (quoting Walter v. Gunter, 367 Md. 386, 392 (2002)).
I.
As relevant here,
A. The Plain Meaning of “Engaged as a Subject” in § 11-207(a)(4)(i) Requires That a Minor Must Appear in the Material at Issue.
S.K. first contends that her conduct did not run afoul of
In resolving this question of interpretation, we apply the standard tools of statutory construction. State v. Bey, 452 Md. 255, 265 (2017). We ascertain legislative intent by affording “words their natural and ordinary meaning,” Davis v. State, 426 Md. 211, 218 (2012), and “neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute,” Bey, 452 Md. at 265 (quoting State v. Johnson, 415 Md. 413, 421 (2010)). In doing so, we interpret the “statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Moore v. State, 388 Md. 446, 453 (2005).
We do not interpret statutory language in isolation, but view it “within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.” Bey, 452 Md. at 266 (quoting Johnson, 415 Md. at 421-22). Where the legislative intent “is clear from the words of the statute, our inquiry normally ends and we apply the plain meaning of the statute.” State v. Neiswanger Mgmt. Servs., LLC, 457 Md. 441, 458-59 (2018) (quoting Huffman v. State, 356 Md. 622, 628 (1999)). But if a statute is ambiguous, “we consult other indicia of legislative intent, including . . . legislative history, the context of the statute within
Applying these principles, we consider the plain language of “engaged as a subject” in the context of the entirety of
- 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;
- photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;
- use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;
- knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:
- that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or
- in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or
- use a computer to knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor‘s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.
The phrase “engage(d) as a subject” appears four times: twice in
Although not dispositive, dictionary definitions “provide[] a useful starting point” for statutory interpretation. Montgomery Cty. v. Deibler, 423 Md. 54, 67 (2011) (quotation omitted). S.K. relies on definition (1) of “subject” from Merriam-Webster (online) as meaning “one that is placed under authority or control,” but she fails to cite the remainder of the definition. The full definition (1) of “subject” is:
1: one that is placed under authority or control: such as
a : VASSAL
b (1) : one subject to a monarch and governed by the monarch‘s law
(2) : one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state
Merriam-Webster (online), “subject,” available at https://www.merriam-webster.com/dictionary/subject (last visited May 30, 2018). S.K. also cites definition (1) from Black‘s Law Dictionary, which provides: “Someone who owes allegiance to a sovereign, esp. a monarch, and is governed by that sovereign‘s laws; one who is under the governing power of another <the monarchy‘s subjects>.” Black‘s Law Dictionary,
From these definitions, S.K. contends that “subject” in
The State points us to two other dictionary definitions of “subject“: (1) “[t]he matter of concern over which something is created,” Black‘s Law Dictionary, “subject,” at 1651; and (2) “A person or thing that is being discussed, described, or dealt with,” Oxford Dictionaries (online), “subject,” available at https://en.oxforddictionaries.com/definition/subject (last visited May 30, 2018); see also New Oxford American Dictionary, “subject,” at 1733 (3d ed. 2010) (same); Merriam-Webster‘s Collegiate Dictionary “subject,” at 1243 (11th ed. 2014) (“something concerning which something is said or done“); American Heritage Dictionary, “subject,” at 1735 (5th ed. 2011) (“One concerning which something is said or done; a person or thing being discussed or dealt with: a subject of gossip“). These definitions are consistent with the “ordinary and popular” usages of the term, Deibler, 423 Md. at 67, and, unlike the definitions proffered by S.K., do not lead to absurd results. Consistent with these definitions, a minor is “engaged as a subject” in sexual conduct if she or he is a participant in, or the object of, such conduct.
These definitions also accord with how the Supreme Court, our Court of Appeals, and this Court have discussed the government‘s interests in combating child pornography. See, e.g., New York v. Ferber, 458 U.S. 747, 758 (1982) (discussing the legislative judgment regarding harm from “the use of children as subjects of pornographic materials“) (emphasis added); Outmezguine v. State, 335 Md. 20, 37 (1994) (”Outmezguine II“) (discussing the State‘s “significant interest . . . in prohibiting the use of children as subjects in pornographic material“) (internal citations omitted; emphasis added); Outmezguine v. State, 97 Md. App. 151, 159 (1993) (”Outmezguine I“) (discussing the legislative focus “on the use of children as the subjects of pornographic material“) (emphasis added), aff‘d, 335 Md. 20 (1994). Based on the plain language of the statute, we therefore conclude that S.K. was “engaged as a subject in . . . sexual conduct” in the video at issue.
Although it is not necessary to consider legislative history, doing so confirms our plain language interpretation. See Moore, 388 Md. at 460 (using legislative history to “bolster[]” conclusion as to plain meaning). In 1978, the General Assembly created § 419A of former Article 27, the predecessor of current
Today‘s
B. § 11-207(a)(4)(i) Does Not Contain an Exception for Material Depicting a Minor Who Is Legally Engaged in Consensual Sexual Activity.
S.K. next argues that legislative history demonstrates that the purpose of
Regardless of whether S.K.‘s argument may have merit as a matter of policy, it has no merit as a matter of statutory construction.
Moreover, even if we were to look beyond the statute‘s plain language, it does not support S.K.‘s contention. Proving a legislative intent to target child abuse is a far cry from proving a legislative intent to protect child pornography that depicts consensual conduct. Indeed, S.K. does not identify any legislative history even suggesting such an intent. The State‘s interest in protecting children from sexual exploitation
The Supreme Court of Washington reached the same conclusion we reach today in State v. Gray, 402 P.3d 254 (Wash. 2017). There, a 17-year-old who, unsolicited, sent an image of his erect penis to an adult woman, was charged under a Washington law that prohibited “[a] person” from developing or disseminating depictions of “a minor engaged in an act of sexually explicit conduct.” Id. at 256-57;
The State has an indisputable interest in protecting minors from exploitation “as subjects in pornographic material,” Outmezguine II, 335 Md. at 37, whether at the hands of others or by their own conduct, Gray, 402 P.3d at 259; see also A.H., 949 So. 2d at 238 (observing that the Florida legislature had identified a “compelling interest” in ensuring that videos or pictures of “sexual conduct by a child of less than 18 years of age [are] never produced“). Indeed, S.K. was apparently so disturbed when she learned that her video was circulated more broadly than she intended that she missed significant school time. As the Supreme Court has recognized, the harm associated with child pornography does not end with its production, but continues with each instance of circulation.6 Ferber, 458 U.S. at 759; see also Gray, 402 P.3d at 259 (observing the legislative goal to “destroy the blight of child pornography everywhere, from production of the images to commercial gain“). Unless and until the General Assembly exempts from the reach of the statute minors who distribute materials depicting their own consensual sexual conduct, that conduct is prohibited by the plain language of
C. Minors Do Not Enjoy a First Amendment Right to Distribute Pornographic Images of Themselves.
S.K. contends that even if her conduct was prohibited by the statute, it was protected by the
In Miller v. California, the Supreme Court established guidelines for determining when material is obscene and, therefore, falls outside the protection of the
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Id. at 24 (internal quotation marks and citations omitted). “The Miller standard, like its predecessors, was an accommodation between the State‘s interests in protecting the ‘sensibilities of unwilling recipients’ from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws.” Ferber, 458 U.S. at 756 (quoting Miller, 413 U.S. at 18-19). The joint foci of the Miller test are thus the impact of the materials on potential viewers and any social value the materials might have. That test is not designed to protect the subjects depicted in the material themselves.
In Ferber, the Court wrestled with whether child pornography was protected by the
First, the Court found it “evident beyond the need for elaboration that a State‘s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.‘” Id. at 756-57 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, 458 U.S. at 757. The Court declined to second-guess the “legislative judgment, as well as the judgment found in the relevant literature, [ ] that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” Id. at 758. That judgment “easily passes muster under the First Amendment.” Id.
Second, the Court observed that the distribution of child pornography and films depicting juvenile sexual activity “is intrinsically related to the sexual abuse of children,”
both because the materials “are a permanent record of the children‘s participation” in the activity and because the production of materials that harm children would not likely stop until the distribution network is closed. Id. at 759. Notably, the Court further observed that the State‘s interest in prohibiting obscenity and its interest in prohibiting child pornography are different, as the former seeks to protect the recipients of the material while the latter focuses on the harm to the children depicted. Id. at 760-61. For that reason, the Miller obscenity test is not necessarily “a satisfactory solution to the child pornography problem.” Id. at 761.
Third, “[t]he advertising and selling of child pornography” constitute the economic incentive for its production. Id. To effectively address the uniformly-recognized evil of the production of child pornography, it is thus appropriate to also proscribe its advertising and sale. Id. at 761-62. Fourth, to the extent that there is any actual value in permitting live performances or reproductions “of children engaged in lewd sexual conduct,” that value “is exceedingly modest, if not de minimis.” Id. at 762. Fifth, the Court found that recognizing child pornography as an additional category of speech falling outside the protection of the
The Supreme Court drew further distinction between the somewhat overlapping categories of child pornography and obscenity in Osborne v. Ohio, recognizing that “the interests underlying child pornography prohibitions far exceed the interests justifying” laws that would prohibit obscene materials featuring adults. 495 U.S. 103, 108 (1990). “Given the importance of the State‘s interest in protecting the victims of child pornography,” the Court thus approved of measures to “dry up the
Almost three decades after Ferber, the Court addressed Congress‘s effort to prohibit “virtual child pornography” through a section of the Child Pornography Prevention Act of 1996 (“CPPA“). Free Speech Coal., 535 U.S. at 241. In contrast to the law at issue in Ferber, which prohibited materials depicting actual children, the CPPA targeted sexually explicit images that only appeared to depict minors, including images of adults pretending to be minors and computer-generated images. Id. at 239-40. In cataloguing the differences between the CPPA and laws of the type approved of in Ferber, the Court began with the obvious: The images covered by the CPPA “do not involve, let alone harm, any children in the production process[.]” Id. at 241. Indeed, the Court observed, the category of speech prohibited by the CPPA was not conduct at all, but the “idea . . . of teenagers engaging in sexual activity,” an idea “that is a fact of modern society and has been a theme in art and
literature throughout the ages.” Id. at 246. The Court ultimately held this provision of the CPPA unconstitutional because it “covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment.” Id. at 256.7
Six years after Free Speech Coalition, the Court decided United States v. Williams. There, the Court addressed Congress‘s “carefully crafted” effort to address the flaws in the CPPA by enacting a new law to target those who pander or solicit what they believe to be child pornography, even if it is not. Id. at 307. The Court interpreted the challenged law, codified at
Finally, in United States v. Stevens, the Supreme Court addressed again its decision in Ferber in the course of refusing to recognize depictions of animal cruelty as a new category of speech unprotected by the
S.K.‘s contention that the
First, as support for the sentence at issue in Free Speech Coalition, the Supreme Court expressly relied on its statement in Ferber that the
reproduction of live performances.” Id. (quoting Ferber, 458 U.S. at 764-65). The distinction drawn in Ferber, and relied upon in Free Speech Coalition, was thus not between material that depicts crimes or sexual abuse and material that does not. Instead, the distinction was between material that contains a visual image of something real (i.e., a live performance or visual recording of a real event), on the one hand, and material that contains any other kind of depiction or description of real or fake sexual conduct (e.g., a story, drawing, painting, cartoon, etc.), on the other. That distinction is fully consistent with the holding in Free Speech Coalition, where the critical issue was whether the children depicted were both (1) real and (2) children.
Second, although the Court‘s decision in Free Speech Coalition emphasized the importance of the link between child pornography and child abuse in explaining why child pornography is not protected by the
Third, the Court in Free Speech Coalition observed in unqualified fashion that
Fourth, when the Court returned to the subject of child pornography in Williams, it stated categorically that “[w]e have held that a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the
In addition, criminalization of child pornography that depicts consensual conduct is still supported by most of the same reasons the Court in Ferber provided in concluding “that the States are entitled to greater leeway in the regulation of pornographic depictions of children.” 458 U.S. at 756. Most importantly, the State‘s compelling interest in “safeguarding the physical and psychological well-being of a minor,” id. at 756-57 (quoting Globe Newspaper, 457 U.S. at 607), applies to all minors, not merely those below the age of legal consent. And although the underlying act itself may not, if unrecorded, constitute sexual abuse if any juvenile participants are of the age of consent, the recording of the act still becomes a “permanent record” of the participation of a child who the legislature may reasonably have determined might lack the judgment to understand the consequences of allowing the creation and distribution of that record. Id. at 759; see also A.H., 949 So. 2d at 238 (observing that a similar Florida “statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment“). Thus, even if the underlying conduct would not qualify as a separate act of sexual abuse, the distribution of the material depicting it can be exploitative and harmful. The General Assembly may also reasonably have determined that allowing the distribution of some pornography involving children—as to which there would be no practical control against broader distribution—might interfere substantially with efforts to combat the evil of child pornography more generally.
In Ferber, the Supreme Court recognized that the category of pornography involving real children is carved out from
II. THE JUVENILE COURT ERRED IN FINDING S.K. INVOLVED IN DISPLAYING AN OBSCENE ITEM TO A MINOR UNDER SECTION 11-203 OF THE CRIMINAL LAW ARTICLE.
S.K. also challenges the juvenile court‘s finding that she was involved in displaying an obscene item to a minor under
A. S.K. Is a Person to Whom the Statute Applies.
S.K. first argues that
S.K. argues that the legislative history of
B. Section 11-203 Does Not Apply to S.K.‘s Digital Video Recording.
S.K. also claims that the digital file she sent by text message does not constitute an “item” whose display is regulated by
The General Assembly did not leave “item” undefined. Doing so would have caused us to engage in an analysis of the General Assembly‘s intent in using that term, including by resort to its common and ordinary meaning. Instead, the General Assembly defined “item” for purposes of the statute to include only specifically-enumerated items. Thus, to be covered, the digital video file S.K. transmitted must be fairly included in one of the four categories of things that the General Assembly has defined as constituting an “item” for purposes of this statute. See Gillespie, 370 Md. at 222 (recognizing the principle of statutory construction that “the expression of one thing is the exclusion of another“).
S.K.‘s digital video file is obviously not a “still picture or photograph,” “book, pocket book, pamphlet, or magazine,” or “recorded telephone message,” leaving only the remaining category of a “videodisc, videotape, video game, film, or computer disc.”
We interpret “film” for purposes of this statute differently from either party. “Film” has two potentially-relevant common dictionary definitions when used as a noun. The first is, in essence, film as a medium on which images or videos can be stored: “a thin flexible strip of plastic or other material coated with light-sensitive emulsion for exposure in a camera, used to produce photographs or motion pictures.” New Oxford American Dictionary, “film,” at 646; see also Merriam-Webster‘s Collegiate Dictionary, “film,” at 468 (“a thin sheet of cellulose acetate or nitrocellulose coated with a radiation-sensitive emulsion for taking photographs“); The American Heritage Dictionary, “film,” at 658 (“A thin sheet or strip of flexible material, such as a cellulose derivative or a thermoplastic resin, coated with a photosensitive emulsion and used to make photographic negatives or transparencies“); Webster‘s Third New International Dictionary, “film,” at 850 (2002) (“a thin flexible transparent
Although each of these definitions might be viable if “film” appeared in the statute by itself, that is not the case. Instead, “film” is paired within its category with the terms “videodisc,” “videotape,” “video game,” and “computer disc,” and so we must interpret it in that context. Bey, 452 Md. at 266 (“We . . . do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute‘s plain language to the isolated section alone.“) (quoting Johnson, 415 Md. at 421).
For two reasons, we conclude that “film,” listed as part of this grouping, could only be a reference to film as a physical medium that can contain content, and not as a video itself. First, three of the four other items in the list (“videodisc,” “videotape,” and “computer disc“) unambiguously refer only to other types of physical media, not to content that might be placed on such media. And although “video game,” if it appeared independently, could refer to either a type of physical media or a particular form of content, “the commonsense canon of noscitur a sociis . . . counsels that a word is given more precise content by the neighboring words with which it is associated.” Williams, 553 U.S. at 294. Second, construing “film” to refer to a “motion picture,” at least as broadly as the State interprets that term, would render nearly or entirely superfluous the terms “videodisc” and “videotape.” When possible, we avoid any interpretation of a statute that would render any of its language superfluous. Md. Port Admin. v. John W. Brawner Contracting Co., 303 Md. 44, 60 (1985). We thus conclude 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.
The legislative history of
The very specific list of “items” covered by
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
JUDGMENT OF THE JUVENILE COURT FOR CHARLES COUNTY AFFIRMED IN PART AND VACATED IN PART. REMANDED TO THE CIRCUIT COURT FOR CHARLES COUNTY FOR FURTHER PROCEEDINGS ON DISPOSITION. COSTS TO BE PAID BY CHARLES COUNTY.