Like many high school dramas, it all began when a close friendship soured.
They were a band of three: Two girls and a boy, all students at the same Maryland high school. If they weren’t hanging out in real life, they were texting each other silly photos and videos, trying to one-up each other with jokes. One day, at the beginning of the 2016 school year, one of the girls, a 16-year-old identified only as SK in court documents, sent her friends AT, also a 16-year-old girl, and KS, a 17-year-old male, a short video of her giving oral sex to a boy. It was just the latest, shocking entry into their ongoing “one-up competition,” according to court documents.
But soon after, the trio had an ugly falling out. KS started calling SK a slut, according to court testimony, and boasted that he could get her in serious trouble if he reported the video to authorities. The clip began to make the rounds at school, even though SK had only sent it to her two friends. The rumor was that KS shared it, though he denied it. Then, in December, her two friends brought the video to the school resource officer, who worked for the local sheriff’s office. It was ultimate tattle tale, but with terrible, real world consequences. Once it was in the hands of the police, the video became a criminal matter.
SK was charged under Maryland’s child pornography statute for sending a video of herself ― a minor ― engaging in a sexual act. A juvenile court agreed that she had distributed child pornography and displayed obscene material to minors. SK appealed, but last week, Maryland’s top court affirmed the ruling, saying that their hands were essentially tied.
Under a plain language reading of the criminal statute, SK was a child pornographer.
It didn’t matter that the minor allegedly victimized was her. Or that the sex act depicted was legal and consensual. In the eyes of the law, she was a criminal.
Protecting the most vulnerable
Child pornography statutes were originally designed to protect children from exploitation, not prosecute them. But with the advent of sexting, minors like SK who trade sexually explicit images are technically producing, distributing and possessing child pornography. States are now struggling to keep up with the changing realities of teenage behavior.
“These antiquated laws were written for predatory adults who were transmitting or possessing child pornography,” said Sameer Hinduja, co-director of the Cyberbullying Research Center and professor of criminology at Florida Atlantic University. “They were not for youth who are using technology to sexually experiment.”
More than two dozen states have tried to fix this issue by creating new laws that specifically address sexting by minors, generally by making it a lesser offense. But in many cases, the existing child pornography law is left unaltered, which means that aggressive prosecutors have discretion to bring charges under either statute if they desire, explained W. Jesse Weins, a lecturer at Arizona State University.
“It gives prosecutors a lot of plea bargaining power,” he said. “They can use the child pornography charge as a threat: ’Hey, I could be charging you with this, so you need to work with me and do everything I say.’”
He said he was not surprised that the court in Maryland, which does not have a sexting law, upheld SK’s conviction.
“The court’s job is to fairly interpret the language of the statute,” he said. “They are not willing to reinterpret child pornography laws to simply exclude all sexting.”
Still, in its ruling, the court urged Maryland to consider changing the law, and pointed to a 2019 bill that would have decriminalized the distribution or manufacturing of child pornography by a person younger than eighteen. The legislation, inspired by SK’s case, failed to pass.
Appropriate response
Sexting experts interviewed by HuffPost said they thought consensual teen sexting should be handled by parents and schools, not the criminal justice system.
For one, the behavior is common, said Hinduja, the Cyberbullying Research Center co-director. His research has found that 14 percent of teens say they’ve sent a sext and 23 percent say they’ve received one.
“It is part of sexual exploration in this day and age,” he said, suggesting that parents talk to their children about the potential negative consequences of sexting. Explicit images and videos can easily end up in the wrong hands, and have a long life on the internet.
But when teens are singled out and prosecuted for ill-advised behavior, it can be devastating.
“It becomes a formal label on their lives,” Hinduja said. “They internalize it. Other people judge them according to that, and their opportunities for the future are reduced.”
Teens who end up in the juvenile or criminal justice system because of sexting are at risk of future legal repercussions, Weins added. In rare cases, they may have to register as a sex offender. More often, they will have to abide by strict probation requirements, which if left unmet can result in further charges and punishment.
SK, for example, had to comply with weekly drug tests and home visits from a probation officer. She had to attend and complete anger management class, and undergo a substance abuse assessment.
“If you have a trip-up in the wrong jurisdiction, you can get into more trouble,” Weins said.
There’s also the question of who prosecutors choose to punish in cases like these. Most teens who engage in sexting don’t end up with criminal charges. The ones who do are the ones who come to the attention of law enforcement and prosecutors, which can be racially skewed.
“There is a lot of strong anecdotal evidence that these laws work the same way all of our other laws do, which is they’re disproportionately applied to people of color,” said Amy Hasinoff, an associate professor of communications at the University of Colorado at Denver. “They’re disproportionately applied to kids in foster care, because they’re under more scrutiny. They’re disproportionately applied, as with any laws around sexual activity, to kids who are gay or trans.”
It is unclear if SK would have been prosecuted if her school did not have a cop. There’s research to suggest that school resource officers play a role in the school-to-prison pipeline, a phenomenon in which students are pushed out of school and into the criminal justice system.
Hasinoff, author of “Sexting Panic: Rethinking Criminalization, Privacy, and Consent,” said she was concerned that in SK’s case, she was the one charged, despite the fact that other students spread the video around school without her consent. That is technically revenge porn, which is a form of sexual violence, Hasinoff added.
She also worried about the psychological impact of dragging SK through an adversarial and potentially traumatizing court process after she had been a victim of a sexual violation.
“Instead of the school and the prosecutor and all the supposedly responsible adults in her life saying, ‘Oh, this horrible thing happened to you, how can we help?’ they said, ‘looks like you committed a crime. Let’s pursue that,’” she said. “It’s very disappointing and very predictable.”