Sexting is the sending of nude, suggestive, or sexually explicit photos by electronic means, usually by cell phone. While some states have enacted criminal laws specifically against sexting, Maryland has not. In states like Maryland that have no specific legislation, sexting is usually prosecuted under child pornography laws, which are intended to severely punish adults who exploit children. In Maryland, teens who engage in sexting can be prosecuted and punished for child pornography and a variety of related crimes.

What is Sexting?

Sexting is thought to be common among teenagers (some estimates say as many as one in five teens have sexted photos of themselves to others), but it is illegal if the person depicted is under the age of 18. In contrast, the consensual, non-commercial, and private sending of sexually explicit photos by adults to adults is generally permitted.

For more information, see Teen Sexting.

Sexting has proved challenging for parents, courts, and schools to address. On the one hand, teens often take and send the photos themselves, as a sort of voluntary self-exploitation, and most people agree that teens should not be subject to harsh criminal punishment based on what is generally adolescent foolishness. On the other hand, subsequent distribution of the pictures can cause distress and humiliation, and sexted images could fall into the hands of child predators.

Possession of Sexually Explicit Material

In Maryland, it is a crime for anyone to possess and retain (receive and keep) an image or video of a child under the age of 16 engaged in sexual conduct or in a state of sexual excitement. Sexual conduct includes sex, oral sex, masturbation, or any touching or contact with the private areas of the body, including a woman’s breasts. For example, if a 15-year-old girl sends a sexually explicit photo of herself to her boyfriend via text message and he keeps the image on his phone, he could be convicted of possession of sexually explicit material.

(Md. Ann. [Crim. Law] Code § § 11-101, 11-208.)

Sharing Obscene Material With a Minor

In Maryland, it is also a crime to show or send a minor (a person under the age of 18) nude or sexually suggestive photos or images of people. If, for example, an 18-year-old texts a nude photo to his 17-year-old girlfriend, he could be convicted under this law. (Md. Ann. [Crim. Law] Code § 11-203.)

Child Pornography

Child pornography is the most serious crime that could be used against teens engaged in sexting. Under Maryland’s laws, a person commits the crime of child pornography by causing, luring, or allowing a child under the age of 18 to be photographed engaging in sexual conduct. It is also a crime to distribute or produce child pornography. Given the harsh penalties for child pornography, teens that engage in sexting may be more likely to be prosecuted for other crimes in Maryland (explained above).

(Md. Ann. [Crim. Law] Code § § 11-101, 11-207.)

For more information on child pornography laws, see Child Enticement Laws in Maryland.

SEXTING AND FEDERAL LAW

Depending on the circumstances, sexting may also be a crime under federal law.

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003 makes it illegal to produce, distribute, receive, or possess with intent to distribute any obscene visual depiction of a minor engaged in sexually explicit conduct. Knowing possession of such material—without intent to distribute—is also a crime under the PROTECT Act. (18 U.S.C. § 1466A(a)(1).)

Federal law also criminalizes causing a minor to take part in sexually explicit conduct in order to visually depict that conduct. Parents who allow this behavior can also be prosecuted. (18 U.S.C. § 2251.)

It’s also a federal crime to use a computer to ship, transport, receive, distribute, or reproduce for distribution a depiction of a minor actually engaging in sexually explicit conduct, or any material that otherwise constitutes child pornography. It’s another federal crime to promote or solicit sexually explicit material involving a minor. (18 U.S.C. § § 2252, 2252A.)

But federal prosecution of juveniles for sexting may be unlikely. The Federal Juvenile Delinquency Act (FJDA) generally provides that, where possible, juveniles should be prosecuted in state—not federal—courts. (18 U.S.C. § 5032.)

Defenses

Under Maryland’s law, it is a defense to a charge of possession of sexually explicit material that the defendant promptly destroyed the image or video and notified a law enforcement officer. (Md. Ann. [Crim. Law] Code § 11-208.)

Harassment and Bullying

As the number of teenagers who have cell phones and use social media has risen, there has also been a corresponding rise in online harassment and cyber-bullying. Insults, taunts, and private photos can now be quickly shared or made public. Depending on the circumstances, a person who distributes or publishes nude photos of a teenager could be charged with harassment, and students can be suspended or expelled for violating their school’s anti-bullying policy.

Penalties

Teens under the age of 18 who are charged with a crime generally fall under the jurisdiction of Maryland’s juvenile justice system. As a general rule, juvenile justice systems focus more on rehabilitation and treatment than the adult criminal justice system, but that does not mean that a teen convicted of a crime cannot end up incarcerated in a juvenile facility.

Possession of sexually explicit material is punishable by up to five years in prison, a fine of up to $2,500, or both. Subsequent convictions are punishable by up to ten years in prison, a fine of up to $10,000, or both. Sharing obscene material with a minor is punishable by up to one year in jail, a fine of up to $1,000, or both. Second and subsequent convictions are punishable by up to three years in prison, a fine of up to $5,000, or both. Child pornography is also punishable by up to ten years’ imprisonment, a fine of up to $25,000, or both. Subsequent convictions are punishable by up to 20 years in prison, a fine of up to $50,000, or both.

(Md. Ann. [Crim. Law] Code § § 11-203, 11-207, 11-208.)

Sex Offender Registration

In Maryland, people who are convicted of child pornography or possession of sexually explicit material featuring children under the age of 18 are required to register as sex offenders. (Md. Ann. [Crim. Proc.] Code § § 11-701, 11-704.)

A Note on Legal Assistance

If you are charged with child pornography or any other crime as a result of teen sexting, you should talk to a Maryland criminal defense attorney immediately. A conviction for any crime, but particularly for a sex crime, can have serious consequences, including years in prison or a juvenile facility, and sex offender registration. An attorney can tell you what to expect in court and how to protect your rights.

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