IN RE: S.K.
No. 41
IN THE COURT OF APPEALS OF MARYLAND
August 28, 2019
Argued: February 1, 2019
Opinion by Getty, J.
September Term, 2018; Circuit Court for Charles County, Case No. 08-J-17-000023; Hotten, J., dissents.
In re: S.K., No. 41, September Term, 2018. Opinion by Getty, J.
MINORS—SALE OR DISSEMINATION OF INDECENT MATERIALS TO CHILDREN
The Court of Appeals held that under the plain language of
TELECOMMUNICATIONS—SOLICITING MINOR FOR SEX OR ILLEGAL ACT; CHILD PORNOGRAPHY
The Court of Appeals held that, based on legislative intent to foreclose any technological loopholes through which actors may potentially distribute child pornography, the term “film” as utilized within
OBSCENITY—DEPICTIONS OF MINORS; CHILD PORNOGRAPHY
The Court of Appeals held that a video exchanged by means of text message fell within the statutory definition of an “item” under
Barbera, C.J. *Greene, McDonald, Watts, Hotten, Getty, Harrell, Glenn T. (Senior Judge, Specially Assigned) JJ.
Opinion by Getty, J. Hotten, J., dissents.
Filed: August 28, 2019
*Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the
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
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,
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.
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
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
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
In reaching its conclusion, the Court of Special Appeals first examined the plain language of
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
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
- 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) ? - 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
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, 134 S. Ct. 2473, 2484 (2014), 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.” 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.
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 attention12 focused
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
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
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
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.
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).
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
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,
(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, or sexual conduct;
(3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;
(4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:
(i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or
(ii) 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
(5) 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.
Matter includes: “(1) a book, magazine, newspaper, or other printed or written material; (2) a picture, drawing, photograph, motion picture, or other pictorial representation; (3) a statue or other figure; (4) a recording, transcription, or mechanical, chemical, or electrical reproduction; or (5) any other article, equipment, machine, or material.”
Distribution of child pornography as a first-time offender is a felony, punishable by up to ten years in prison and a $25,000 fine. An offender is required to register as a sex offender, but for a minor adjudicated delinquent for this act, registration is not mandatory but could be required at the trial court‘s discretion.
S.K. contends this case is about whether
S.K. argues there are two points of ambiguity in
Further, S.K. argues that in examining the other sections of
The State contends that S.K. clearly falls under the statute pursuant to its plain language and that S.K.‘s attempts to find ambiguity should be rejected. The Court of Special Appeals’ definition dovetails with the ordinary usage of the term “subject” in the child pornography context and is consistent with the customary usage of the term. Further, applying
We do not find any ambiguity in this text and, therefore it is our duty to interpret the law as written and apply its plain meaning to the facts before us. See In re Patrick A., 70 Md. App. 191, 201 (1987), aff‘d 312 Md. 482 (1988) (quoting Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 535–36 (1965)) (“We must confine ourselves ‘to a construction of the statute as written, and not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute.‘“). We turn first to whether one individual can be both a person and a minor, as contemplated by
As to the first potential area of ambiguity S.K. raises, we agree with the Court of Special Appeals and the State that a minor is “engaged as a subject” under the statute “if she or he is a participant in, or the object of, such conduct.” In re S.K., 237 Md. App. at 469. S.K. interprets the phrase “engaged as a subject in” to mean under authority or control and proffers that the statute applies only when the minor is unable to consent to the sexual conduct.19 As to the second point of ambiguity raised, S.K. is certainly “a person” to which this statute would apply. We refuse to read into the statute an exception for minors who distribute their own matter, and thus we believe S.K.‘s adjudication as delinquent under
Our review of the legislative history supports this interpretation. The first statute regulating child pornography in Maryland was enacted in 1978, the session of the General Assembly directly after the federal statute was enacted. See
In 1985, the law was amended to include the knowing “promotion, distribution or possession with intent to distribute” imagery of “a child engaged as a subject in sexual conduct.” See 1985 Md. Laws. ch. 494. The law expanded the reach of the statute beyond obscene matter to include sexual conduct when it came to promotion and distribution of pornographic material involving children. Outmezguine, 97 Md. App. at 165. These provisions were added “to make easier the prosecution and conviction of child pornography offenses to reduce the sexual exploitation and abuse of children.” S. Jud. Proc. Com., Summ. of Comm. Rep. of S.B. 554 at 2 (1985).
In 1986, the Legislature extended the provision outlawing the photographing of children to include the photographing or
This case presents a unique challenge. On the one hand, there is no question that the State has an overwhelming interest in preventing the spread of child pornography and has been given broad authority to eradicate the production and distribution of child pornography. On the other hand, S.K., albeit unwisely, engaged in the same behavior as many of her peers. Here, S.K is prosecuted as a “child pornographer” for sexting and, because she is a minor, her actions fell directly within the scope of the statute. The General Assembly has consistently expanded the scope of the statute to assist in the eradication of any form of child pornography. As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.
Therefore, based on this intent and the unambiguous language, we believe S.K.‘s conduct falls within the purview of the statute. In affirming this adjudication, however, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography.23
B. S.K.‘s Conduct Falls Within That Contemplated by CR § 11-203 .
As to the cross-petition, the State argues the juvenile court properly found S.K. involved in the offense of displaying an obscene item to a minor under
(i) that the average adult applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(ii) that the work depicts sexual conduct specified in subsection (b) of this section
in a way that is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material; and (iii) that the work, taken as a whole, lacks serious artistic, educational, literary, political, or scientific value.
Maryland‘s statutory definition of obscenity is primarily based on the test for obscenity provided by the Supreme Court in Miller v. California, 413 U.S. 15, 24 (1973). Within our analysis, we first must determine whether the materials S.K. disseminated to her two minor friends constitute obscene material. After, we must determine whether a digital file falls within the list of “items” enumerated by
[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State‘s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. “It is irrelevant to the child [who has been abused] whether or not the material ... has a literary, artistic, political or social value.” We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.
Ferber, 458 U.S. at 761 (citation omitted). Moreover, obscene material involving adults is entitled to a substantially greater level of First Amendment protection, as compared to obscene material involving minors. See United States v. Williams, 553 U.S. 285, 288 (2008) (“[w]e have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults.“).
We agree with the juvenile court‘s finding and conclude that the video file S.K. transmitted to her friends contained obscene material based on the video‘s depiction of sexualized content of a nude minor engaging in the act of fellatio. Although the sexual act in this case was consensual, it also falls directly within the definition of Maryland‘s obscenity statute of “display[ing] or exhibit[ing] to a minor an [obscene] item” which contains “illicit sex” and a “partially nude figure.”
Second, we must determine whether the video S.K. distributed to her friends is an “item” enumerated in the statute. We agree with the Court of Special Appeals that S.K.‘s digital file is obviously not a still picture, photograph, book, pocket book, pamphlet, magazine, or recorded telephone message. Therefore, we must determine whether it falls within the category of “videodisc, videotape, video game, film, or computer disc.” We agree with the Court of Special Appeals that “film” has two potentially relevant dictionary definitions as a noun—film as a medium and film in the context of a motion picture or movie. However, we diverge from the Court of Special Appeals’ conclusion that the statute is referring to a particular type of media. Rather, based on the intent of the legislature, a digital video file is a film as a motion picture or movie and thus within the purview of the statute.
We have previously found situations where statutes can be applied to encompass post-enactment technological advances. See Sieglein v. Schmidt, 447 Md. 647 (2016). In Sieglein, 447 Md. at 660, the petitioner argued that the term “artificial insemination” had a plain meaning in reference only to intrauterine insemination. Id. He argued that in vitro fertilization, the procedure used in that case, should be excluded from the definition of “artificial insemination” because the procedure could not have been contemplated when
In a similar vein, the predecessor to
In 1995, the General Assembly revised the statute to (1) include “film” and “computer disc” within the list of media covered by the statute, and (2) extend the reach of the statute to the display or exhibit of the items, even if not for “business.” 1995 Md. Laws, ch. 133. The amendments were an attempt to “clos[e] the loopholes that modern technology have handed the purveyors of pornography.” 1995 Md. Laws, ch. 133 (bill file for S.B. 21, Letter from Department of Maryland State Police and Letter from American Academy of Pediatrics). In 2006, the statute was updated to add video games to the statute. We glean from the statutory revisions that the general intent of the General Assembly has been to foreclose, where appropriate, any future loopholes in the statute encompassing technological advances.
We agree with the Court of Special Appeals that the statute technically “has not kept pace with the ways in which obscene images may be displayed to minors.” In re S.K., 237 Md. App. at 487. However, we disagree with their analysis because many of the other “items” enumerated, such as photographs, video discs, and videotapes, are now in digital format. See Thomas Crofts & Murray Lee, ‘Sexting‘, Children and Child Pornography, 35 Sydney L. Rev. 85, 106 (2013); Gray Mateo, The New Face of Child Pornography: Digital Imaging Technology and the Law, 2008 U. Ill. J.L. Tech. & Pol‘y 175, 198 (2008); Jane Bailey, Confronting Collective Harm: Technology‘s Transformative Impact on Child Pornography, 56 U.N.B.L.J. 65, 102 (2007) (detailing the emergence of new technologies, their effect on the distribution of child pornography, and legislative responses). In our plain language approach, we recognize the problematic aspects of applying statutory language emerging from the 1970s and 1990s to modern technologies. In short, the provision has failed to keep pace with technology and, in some instances, may be ill-suited in application to some technological advancement occurring subsequent to enactment and later amendment.
However, “film,” by its definition as a motion picture or movie, is a predecessor media to the digital age. We disagree with the Court of Special Appeals’ definition of film merely as a current media “on which photographs or videos can be produced.” Id. at 486. For example, the Supreme Court in Ferber referred to “photographs and film” and “photographs and movies” interchangeably to capture the 1982 medium for films or movies depicting child pornography. See supra at 16–17. Over the decades, the medium has evolved from film (which typically was viewed by a movie projector shown on a projection screen) to videotape (which typically was viewed from a VHS cassette played on a VCR connected to a television screen) to digital file format (which began typically as a DVD played on a DVD player connected to a television or computer screen but is now ubiquitous through digital media players on computers, laptops, smartphones, iPads, tablets, E-readers, smartwatches, and other personal devices).25
Therefore, the video constitutes obscenity, the statutory list of technologies encompasses digital media, and S.K. violated
CONCLUSION
As a matter of first impression, we are called to reconcile whether a minor may be adjudicated delinquent under the current statutory scheme as a distributor of child pornography and a displayer of obscene matter by the minor‘s act of sexting a cellphone video to other minors. For the foregoing reasons, the language of
JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED IN PART AND REVERSED IN PART; COSTS TO BE PAID BY PETITIONER/CROSS-RESPONDENT.
IN RE: S.K.
No. 41
IN THE COURT OF APPEALS OF MARYLAND
September Term, 2018; Filed: August 28, 2019
Barbera, C.J., *Greene, McDonald, Watts, Hotten, Getty, Harrell, Glenn T. (Senior Judge, Specially Assigned) JJ.
Dissenting Opinion by Hotten, J.
*Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the
Respectfully, I dissent and would reverse the judgment of the Court of Special Appeals regarding issue one and affirm as to issue two.
S.K. WAS NOT INVOLVED IN THE OFFENSE OF DISTRIBUTION OF CHILD PORNOGRAPHY
The first issue seeks to resolve whether the juvenile court erred in finding that 16-year-old S.K. was involved in distributing child pornography as proscribed by Criminal Law Article (“Crim. Law“) § 11-207(a)(4). The Majority affirms the holding of the juvenile court and the Court of Special Appeals, conducting a statutory analysis that largely rests on a plain language interpretation. (“We do not find any ambiguity in this text and, therefore it is our duty to interpret the law as written
Plain Language Analysis of Crim. Law § 11-207(a)
The text of
I assert that a plain reading of the text could lead to a conclusion that “person” and “minor” are two different people. The full text of
(a) 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, or sexual conduct;
(3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;
(4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:
(i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or
(ii) 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
(5) 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.
(emphasis added). Grammatical convention provides that one purpose of a colon is to “introduce[] an element or series of elements that illustrates or amplifies the information that preceded the colon. . . . [One can] [t]hink [of a colon] as a flashing arrow that points to the information following it.” Colon, GRAMMARLY, https://www.grammarly.com/blog/colon-2/, available at https://perma.cc/D5KK-FMXX (last visited Aug. 27, 2019). Therefore, the noun “person,” which precedes the colon, applies equally to all of
The State concedes that under subsection (a)(1), “the same individual cannot be the ‘person’ and the ‘minor.‘” The State argues, however, that for purposes of subsections (a)(2)-(a)(5), the terms “person” and “minor” may indeed be the same individual. This distinction between subsections (a)(1) and (a)(2)-(a)(5) is contrary to canons of statutory construction, which dictate that one should avoid interpreting a provision in a manner that is inconsistent with the structure of the statute. See Eli Lilly and Co. v. Medtronic, Inc., 496 U.S. 661, 669, 110 S.Ct. 2683, 2688 (1990) (affirming the Court of Appeals’ interpretation by considering “the structure of the 1984 Act taken as a whole[ ]“); see also Gwaltney of Smithfield, Ltd. V. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 49, 108 S.Ct. 376, 377 (1987). Here, the structure of the statute uses a colon to introduce two separate entities: a “person” and a “minor.” We cannot arbitrarily forgo the structure of the statute from one subsection to the next so that the term “person” presents different meanings. Given that the “person” and “minor” in
Therefore, I conclude that the plain language of
Legislative Intent Analysis of Crim. Law § 11-207(a)
The legislative purpose in enacting the child pornography statute was to address child pornography trafficking and to prevent the sexual exploitation and abuse of minors. See 1978 Md. Laws. Ch. 573; see also Outmezguine v. State, 335 Md. 20, 36, 641 A.2d 870, 878 (1994). The history of legislation, discussed further below, reveals that the State sought to protect children from exploitation and abuse as opposed to enacting laws that criminalized consensual sexual activity among minors.
In Outmezguine v. State, 335 Md. 20, 641 A.2d 870 (1994), this Court considered the former iteration of
In the case at bar, S.K. was not being exploited by someone else. She made a video depicting consensual sexual conduct. The General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution, as reflected by the language of
The Court of Special Appeals and the State cited a series of cases in asserting that
The Majority and Court of Special Appeals also referred to the Supreme Court‘s decision in Ferber to support its legislative intent argument. Though the Ferber Court asserted the general principle “that the use of children as subjects of pornographic materials is harmful. . . .” 458 U.S. at 758, 102 S.Ct at 3355, the Court clarified its assertion in a footnote, stating that “the use of children as ... subjects of pornographic materials is very harmful to both the children and the society as a whole. It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life. ...” Id. at n.9 (internal quotations and citations omitted). Therefore, the Ferber Court qualified its broader and generalized assertion regarding its concern for children in pornographic content. The qualification in footnote nine specified the Court‘s particular concern regarding the exploitative
Notably, the Majority cites State v. Gray, 189 Wash.2d 334, 402 P.3d 254 (Wash. 2017), which considered the plain language and legislative intent of a child pornography statute. The Gray Court held that the 17-year-old Petitioner was rightfully convicted under the Revised Code of Washington (“RCW“) 9.68A.050(1)(a)(i) for sending an unsolicited image of his erect penis to an adult woman.
(1)(a) A person eighteen years of age or older commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree when he or she:
(i) Knowingly develops . . .disseminates . . . or sells a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct . . .
(emphasis added). The Court held that the “person” and “minor” in the statute could be the same individual, but cited to the Legislature‘s intent in creating the statute.
Given the General Assembly‘s intent to protect children from sexual exploitation,
The General Assembly‘s Intent to Protect Children and the Rehabilitative Nature of Juvenile Proceedings
In Gray, supra, three judges dissented, contending that the legislative intent for the statute at issue was to protect children and that such an intent should exempt children from prosecution under the law.
For more than 80 years, the United States Supreme Court, federal courts, and Washington courts have held that when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature‘s intent to protect members of that class from criminal liability for their own depiction in such conduct. E.g., Gebardi v. United States, 287 U.S. 112, 119, 53 S.Ct. 35, 77 L.Ed. 206 (1932); City of Auburn v. Hedlund, 165 Wash.2d 645, 652, 201 P.3d 315 (2009).
RCW 9.68A.050 was enacted against that historical backdrop. It was specifically intended to protect children depicted in pornography. Since the legislature enactedRCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution underRCW 9.68A.050 for such depictions of themselves.Indeed, if the legislature wanted us to apply a different rule of statutory interpretation—one that would permit members of the protected class to be charged, prosecuted, convicted, and imprisoned for up to 10 years for sexually explicit, exploitative depictions of their own bodies—it was the legislature‘s duty to explicitly say that they were departing from the general rule of statutory interpretation. The legislature did not say so here. Its silence must be construed as an endorsement of the general rule.
189 Wash.2d at 349-50, 402 P. 3d at 262 (McCloud, J., dissenting) (emphasis added) (footnote omitted). The Gray dissent is applicable to the case at bar, demonstrating that the Majority‘s interpretation of the statutory language “punishes the most vulnerable participant—the depicted child—no matter what personal pressures or personal struggles … compelled the child to do it.” 189 Wash.2d at 350, 402 P.3d at 262.
The Court of Special Appeals recognized that self-produced pornography can cause “significant ‘physiological, emotional, and mental’ harm to the minor[,]” including withdrawal from others, depression, anxiety, and low self-esteem. In Re: S.K., 237 Md. App. 458, 473, 186 A.3d 181, 189 n.6 (2018) (internal citations omitted). S.K.‘s mother testified that “[w]hen all this hit, sort of hit the fan back [in] December that was when everything, her grades went downhill. She, she did not, didn‘t go to school the whole month of December because of this. And [t]hen, and it just went spiraling[.]” S.K.‘s mother further testified that when S.K. learned that the video was being circulated to others at school, S.K. called her mother “from school in tears[.]” It is clear that S.K. suffered immense distress after learning that the digital file had been circulated among peers—such distress that she could not fathom going back to school for an entire month. She suffered from the very emotional and mental harms that the Court of Special Appeals referenced. It therefore seems counterintuitive to further subject S.K. to prosecution under a statute that was designed to protect her.
For purposes of resolving delinquent behavior or conduct, the mission of the juvenile court in Maryland includes achievement of a respectful, sensitive, holistic approach to the child – balancing the components of rehabilitation, treatment and public safety with attention and care – in an effort to resolve the delinquent conduct. See
Given the collateral consequences of juvenile adjudication within the broader scheme of rehabilitation, we must proceed cautiously with findings of delinquency. In the instant matter, the retributive nature of the juvenile adjudication by the State is evident by the significant stigma and trauma to S.K., which is exacerbated by the juvenile court‘s delinquency findings. Rather than provide remedies to assist and protect, the State generated conditions on S.K. that were retributive, including GPS monitoring, which the juvenile court unequivocally denied.
I also find the failure to exercise prosecutorial discretion towards a 16-year-old minor who was visibly distressed by dissemination of – what she believed to be – a confidential file shared with two friends – highly problematic. The State had the discretion to file charges, and ultimately charged S.K. as a juvenile with three counts, one of which was dismissed for lack of evidence. The rigor with which the State sought to prosecute S.K. is at odds with the rehabilitative nature of juvenile proceedings.
Based on a statutory interpretation of
S.K. WAS NOT INVOLVED IN THE OFFENSE OF DISPLAYING AN OBSCENE ITEM TO A MINOR
The second issue seeks to resolve whether the juvenile court erred in finding S.K. involved in the offense of displaying an obscene item to a minor as proscribed by
I respectfully dissent and conclude that the term “film,” as used in the statute, does not refer to “a motion picture or movie” but rather, to a kind of medium. Because S.K.‘s digital file is not within the medium of film, she is not subject to adjudication under the statute.
The doctrine of noscitur a sociis specifies that “the meaning of an unclear word or phrase, esp[ecially] one in a list, should be determined by the words immediately surrounding it.” Black‘s Law Dictionary (11th ed. 2019). The term “film” is grouped with “videodisc, videotape, video game, or computer disc.” All of these terms, with the potential exception of “video game” “unambiguously refer only to . . . types of physical media, not to content that might be placed on such media.” In re S.K., 237 Md. App. at 486, 186 A.3d at 197. Given the general grouping that “film” is placed in, the proper definition to attribute to “film” is not a motion picture, but rather, a physical medium that can contain content. Specifically, “film” as a medium containing content, is defined as “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.” Id. at 484-85, 237 Md. App. at 196. Therefore, S.K‘s file does not meet the definition of “film.” Furthermore, as the Court of Special Appeals noted, “construing ‘film’ to refer to a ‘motion picture,’ at least as broadly as the State [and Majority] interprets that term, would render nearly or entirely superfluous the terms ‘videodisc’ and ‘videotape.’ When possible, [courts] avoid any interpretation of a statute that would render any of its language superfluous.” Id. (internal citation omitted).
The Majority asserts that statutory language maintains pace with technological innovations. Accordingly, the Majority maintains that S.K‘s digital file falls within the purview of the term “film.” However, if the General Assembly wanted to amend the language of
In 1982, the law applied only to obscene or sexually explicit “still picture[s], photograph[s], book[s], pocket book[s], pamphlet[s], or magazine[s].”
Md. Code (1957, 1982 Rep]. Vol) Art 27 Section 419 ; 1981 Md. Laws c. 725 (S.B.725). In 1984, the Legislature amended this list to include “video disc[s]“and “video tape[s].” 1984 Md. Laws ch. 590 (H.B.155). In 1986, lawmakers added “recorded telephone messages” to the list. 1986 Md. Laws, Ch. 851 (H.B.l). Since then, the list has grown to include film and computer discs (1995) and video games (2006). 1995 Md. Laws Ch. 133 (S.B. 21); 2006 Md. Laws Ch. 346 (H.B. 707). [However,] [a]t no time did the Legislature include in this list of items a general “catch all” category or other expansionary phrase. . . .”
Further support for restricting the term “film” to a type of medium arises from recent legislative history. In response to the opinion of the Court of Special Appeals in this case, Delegate Kathleen M. Dumais introduced House Bill 97 which was later cross-filed by Senator Susan C. Lee as Senate Bill 1003 during the 2019 Legislative Session. These bills sought to revise the “items” enumerated in
During the hearing before the Judicial Proceedings Committee, Baltimore County State‘s Attorney Scott D. Shellenberger indicated that the statute was last updated in 2006, and that these bills would assist in conforming the statute to keep pace with modern technology. House Bill 97 passed the House but neither bill passed in the Senate Judicial Proceeding Committee. As such, the General Assembly expressly rejected expanding the definition of “item” under
The Majority cites Sieglin v. Smith, 447 Md. 647, 136 A.3d 751 (2016) to support its proposition that a statute can be interpreted to encompass technological advances. In Sieglin, this Court addressed the question of whether
The analysis, supra, reveals that the statutory language of an “item” in
CONCLUSION
A statutory analysis of
I also dissent with the Majority on the second issue and would affirm our intermediate court‘s holding. I believe that the Majority applies an overly-broad definition to “film” in
Notes
- Did the juvenile court err in finding 16-year-old S.K. involved in distributing child pornography as proscribed by [CR] § 11-207(a), where she was both the sender and the only depicted minor, and where the act depicted was not in itself criminal?
- Did the juvenile court properly find S.K. involved in the offense of displaying an obscene item to a minor despite the fact that, as the Court of Special Appeals held, the statute does not specifically state that it applies to “an electronically transmitted digital video file”?
People in Interest of T.B., 2019 WL 2495514 at *3. There, since the juvenile’s actions predated the statutory change, he was subject to registration as a sex offender rather than a civil penalty. Id. at *16 (Gabriel J, dissenting).created, among other lower-level offenses, the civil infraction of “exchange of a private image” by a juvenile. Under this new offense, a juvenile who knowingly possesses a sexually explicit image of another person who is at least fourteen years old or less than four years younger than the juvenile, and who reasonably believes the depicted person transmitted the image or otherwise agreed to its transmittal, commits a civil infraction punishable by a fine of up to $50 or participation in a program addressing the risks and consequences of such behavior.