Maryland’s law against distributing child pornography applies even when the person distributing a pornographic video is the video’s minor subject, Maryland’s highest court ruled on Wednesday in a 6-1 vote.

The girl, identified only as “S.K.” in court documents, was 16 years old when she performed oral sex on an unidentified male. The act was captured on video—he appears to have been holding the camera—and S.K. shared the video with two friends via a text message. She eventually became estranged from one of the friends, a 17-year-old boy, and he showed the video to a police officer at the school.

The government charged the girl as a juvenile for distributing child pornography and displaying an obscene item to a minor. She was ultimately found to be involved in delinquent acts on both charges—the juvenile equivalent of a criminal conviction.

Because she was a minor, the girl didn’t face prison time. But she was placed on a year’s probation.

The girl appealed the decision, arguing that the state’s child pornography law was designed to protect minors from sexual exploitation. S.K. argued that she wasn’t exploited—and that it was nonsensical to prosecute someone for exploiting herself.

But the majority of the Maryland Court of Appeals—the state’s highest court—was unconvinced. The court ruled that the statute banned all distribution of child pornography, with no exception for cases where the pornographer and the victim was the same person. The majority admitted that the outcome was unfortunate, but they argued that it was up to the legislature—not the courts—to change the law.

One judge dissented

One of the court’s judges, Michele Hotten, dissented, arguing that the judges were misreading the law. The law says that “a person may not cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter.” It also says that a person may not “photograph or film a minor engaging” in “sexual conduct.”

Hotten argued that it makes sense to read “a person” and “a minor” as different people because someone can’t “induce” or “solicit” herself to do something. In her view, that means a minor can’t break the law by filming herself engaged in sexual acts—because if she’s the “minor” in the statute then the “person” must be someone else.

She argues that this interpretation of the law is more consistent with the intent of the Maryland legislature, which was aiming to protect minors from sexual exploitation during the production of child pornography. But the girl in this case doesn’t seem to have been sexually exploited, and she certainly didn’t sexually exploit herself.

It’s not clear if anyone else will be charged in the case. By the time S.K. was charged, the video of her performing oral sex had begun to circulate more widely around her high school. She says she only shared the video with her two friends, which implies one of them shared the video with others. That itself could be a violation of laws against the distribution of child pornography.

This week’s ruling also doesn’t mention whether authorities have identified the boy receiving oral sex in the video who reportedly was holding the camera. It’s not clear if he was an adult or a juvenile at the time of their sexual encounter.

Officials have been struggling with this kind of issue across the country. On Thursday, the Chicago suburb of Naperville agreed to pay a $250,000 settlement to the parents of a 16-year-old boy who killed himself shortly after harsh interrogation about reports that he had shown sexually explicit material to other students on his iPhone.

According to the Chicago Tribune, “police later determined his recording contained audio of a consensual sexual encounter, and there were no illegal images on the boy’s phone.” But by then it was too late—the boy had already thrown himself off the top of a parking structure and fallen to his death.

https://arstechnica.com/?p=1559899