Teenage girl who sent friends sexually explicit video broke child pornography laws, US court rules

A teenage girl who sent a video of herself performing a sexually explicit act to two friends has been charged with violating state child pornography laws by the Maryland Court of Appeals this week.

The state’s highest court upheld the decision by a lower appeals court on Wednesday in the case of “SK”, its ruling meaning the accused – who was 16 at the time she sent the clip - did not have to register as a sex offender but was ordered to undergo electronic monitoring and probation.

As part of the terms of her probation, SK will have to take periodic drug tests, attend anger management classes and seek permission to leave the state.

“We refuse to read into the statute an exception for minors who distribute their own matter, and thus we believe SK’s adjudication as a delinquent must be upheld,” read the 35-page verdict from the Court of Appeals’ judges, who voted 6-1 in favour of upholding the earlier decision.

SK and her two best friends had swapped “silly photos and videos” in a text-based group chat “in an effort to ‘one-up’ each other”, according to the ruling, culminating in SK sending AT, 16-year-old female, and KS, a 17-year-old male, a “one-minute video of herself performing [oral sex] on a male” during the 2016-17 school year.

“The trio hung out together and trusted one another to keep their group messages private,” the ruling states, by way of background.

But after the trio fell out, the video was shared among their fellow students.

AT testified that KS “would always write on the board, like, saying she’s a slut or saying any type of thing” and had urged her to join him in reporting the video to the school.

While KS insisted he “was worried about SK and wanted her to receive help”, the court papers said, AT said she believed his motives “were not so pure”.

“AT testified that KS was bragging around school about SK going to jail if he were to report the text message,” the papers stated.

KS, who retained a copy of the video in his email account, showed it to their school’s resource officer, who told him to delete it.

The latter then met SK, who was read her rights. According to his subsequent police report, which was passed on to the Maryland state attorney, SK “cried during their meeting and was upset that the video was going around the school”.

Prosecutors subsequently charged SK as a juvenile with filming a minor engaging in a sex act, distributing child pornography and showing an obscene item to a minor.

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She appealed, arguing that “the statute was intended to protect, not prosecute, minors victimised and exploited in the production of sexually explicit videos”.

The Maryland Court of Appeals recognised the issue was more complicated than in equivalent cases involving adults while still ruling against SK.

“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,” the judge’s opinion on Wednesday concluded.

“On the other hand, SK, albeit unwisely, engaged in the same behaviour as many of her peers. Here, SK is prosecuted as a ‘child pornographer’ for sexting and, because she is a minor, her actions fell directly within the scope of the statute… As written, the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter.”

The judges said they did “recognise that there may be compelling policy reasons for treating teenage sexting different from child pornography” and said legislation differentiating the two “ought to be considered by [the state’s] general assembly in the future”.

Judge Michele D Hotten, the one descenting voice on the panel, wrote: “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. Rather, the statute contemplates protecting children from the actions of others.”

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Maryland’s verdict has sparked widespread criticism for subjecting SK to a humiliating ordeal.

Rebecca Roiphe, a professor of law at New York Law School and former Manhattan assistant district attorney, told The Guardian: “This is a ridiculous reading of the statute... The law uses two different terms, ‘person’ to describe the perpetrator and ‘minor’ to describe the victim. The legislature clearly did not intend to criminalise the victim.

“I think the case illustrates how troubling the enforcement of sex crimes can be and how important it is that prosecutors use their discretion wisely.”

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