ANNAPOLIS (Feb. 7, 2020)—Teens could be exempted from Maryland's child pornography laws in certain cases if the General Assembly passes any one of four bills filed this session.
Lawmakers want to decriminalize teen "sexting," a practice that arose with the mass adoption of smartphones and that experts say is fairly common among teenagers.
But legislators will have to do more than protect teenagers from prosecution under established laws written to protect them from adult predators.
They must decide what should be done when teens send explicit "selfies" and draw a line on when an act becomes more sinister without creating loopholes that exempt minors who are exploiting their peers.
Legislators hope to protect boys and girls like a 16-year-old convicted as her own pornographer. Maryland's top court called on the legislature to craft the exemption when it upheld that girl's conviction last year.
Other states have answered this question—27 according to a 2018 study—but that doesn't mean it will be easy in Maryland. Passing any one of the bills would be the first time legislators have weakened the state's child pornography laws since they were first passed in 1978.
"If this was an easy question, we would have figured it out already, or the court would have done it for us," said Sen. Jeff Waldstreicher, D-Montgomery, sponsor of one proposal. "Instead, we are dealing with a complicated stew of privacy, morals, children and criminalization. We will have to weigh all of the issues before us and make a final decision."
Waldstreicher's bill is similar to one filed in the House by Delegate C.T. Wilson, D-Charles, on behalf of the Maryland Office of the Public Defender. Those bills would remove violations of teen sexting laws from the juvenile justice system—the top priority of the Office of the Public Defender and the Maryland American Civil Liberties Union this session.
Two other bills would keep violations of the state's child pornography laws by minors in the juvenile justice system but would create a diversion program requiring minors who violated the law to attend an educational program that teaches them the risks of sexting. Lawmakers who have proposed these bills told Capital News Service the legislature needs to prevent unjust prosecutions, but send a clear message to Maryland teens that they should not sext.
"Sometimes children do things … that are a little foolish," said Sen. Susan Lee, D-Montgomery, who introduced the most comprehensive bill. "I think an education program is very important to make them aware that what they did was wrong and they should never do it again."
Delegate Luke Clippinger, D-Baltimore, is chair of the House Judiciary Committee, which is likely to take up this question. His bill also requires an education program.
He said he wants to see a law that discourages teens from sexting. He wants to protect first-time offenders while still punishing deliberate, repeated violations.
"If this happens more than once, it starts to look less like an innocent mistake and more like a deliberate act," Clippinger said.
In the legal case at the center of this call to action, a 16-year-old girl was involved in a "one-up" competition with her best friends, another 16-year-old girl and a 17-year-old boy, according to court records. The girl sent a video of herself performing a sex act to a group chat she maintained with those friends.
Later, after a falling-out, her friends shared the video with other students at their school and with a school resource officer.
Noting that the General Assembly has "consistently expanded the scope" of child pornography laws since they were first passed, Judge Joseph M. Getty wrote in the court's August opinion upholding the girl's conviction that lawmakers have made "no distinction whether a minor or an adult is distributing" the material.
"However, we recognize that there may be compelling policy reasons for treating teenage sexting different from child pornography," Getty wrote in the 35-page opinion.
"Such legislation ought to be considered by the General Assembly in the future."
The 16-year-old girl was prosecuted in the juvenile justice system, meaning she was not subject to the full punishment mandated by the state's child pornography laws, court records show. She also did not have to register as a sex offender as part of her sentence, which did include probation and weekly drug screenings.
The public defender's office represented the girl. The office's director of government relations, Ricardo Flores, said teens should still be told texting is bad, but it's the Maryland Department of Social Services that should decide outcomes.
A psychologist who has studied teen sexting and how state laws address it told Capital News Service that sexting is a common and generally healthy practice for 16- and 17-year-olds to engage in. He said education programs for those ages are not needed.
Instead, he suggested lawmakers in Maryland consider programs in schools that teach healthy relationships and better "digital citizenship" while taking a more proactive approach with younger sexters.
"Early sexual debut is related to negative outcomes. Consensual sex between 16- and 17-year-olds is not. We expect to see the same with sexting," said Jeff R. Temple, a professor at the University of Texas Medical Branch and director of its Center for Violence Prevention.
"If a 14-year-old is sexting, that is alarming to me. That does suggest to me something is going on."
A study published by Temple and three others in December 2018 found most states that have considered this question have created separate statutes to address teen sexting. That's what Pennsylvania, West Virginia and 17 other states did. Only New Mexico and Maine have exempted children from child pornography laws. New York and New Jersey created diversion programs. Four other states also adapted their laws, keeping minors in mind.
The same study also reviewed 39 other studies of teen sexting and determined that the practice is common, usually consensual, increases with age, and its growth has likely paralleled teen smartphone ownership. The survey said 15% of teens have sent a sext and 27% have received a sext.
The first hearing on teen sexting is expected to be held by the powerful Senate Judicial Proceedings Committee on Tuesday. Waldstreicher is the committee's vice chair. Lee is a longtime member. Both of their bills are scheduled to be heard.
Waldstreicher said he prefers an approach that keeps teen violations out of the criminal justice system, but is willing to support a more comprehensive proposal like Lee's that creates exceptions that could still charge minors with child pornography if they have already been convicted of crimes like sexual abuse, sextortion or revenge porn.
"As a philosophical matter, I work hard to make sure that issues of discipline are between their children, their family—and maybe their school—(and) are not over criminalized in a way that penalizes children and creates a school-to-prison pipeline," Waldstreicher said.
"I think the legislature often struggles with line drawing but it is something we do. We have two thirds of the legislative session left and I think all of us will be wrestling with these difficult issues for the next 60 years."