Sexting is the sending of nude, suggestive, or sexually explicit photos by electronic means, usually through texts, chat boards, or social media. Some states have enacted laws that specifically address sexting by and between teens and minors. These laws tend to punish teen sexting less harshly than laws in states that prosecute sexting under preexisting laws related to child pornography and obscenity.
Maryland is one of the states that does not have specific sexting legislation. Sexting that involves minors falls under the state's child pornography and related laws. While these laws were originally intended to punish adults who exploit children, they can impose the same harsh penalties on teens—many of whom are minors—for common adolescent behavior.
In Maryland, a person who creates, distributes, or possesses with intent to distribute child pornography faces harsh felony penalties. Child pornography includes images or videos depicting a minor (younger than 18) engaged in an obscene act or sexual conduct.
Definition of sexual conduct. Sexual conduct includes sexual intercourse, oral sex, masturbation, lewd exhibition of the genitals or pubic area, or any touching or contact with the private areas of the body, including a female's breasts.
Selfies. The Maryland Court of Appeals held that child pornography charges apply to selfies taken by minors. In a 2019 case, a 16-year-old was found guilty of child pornography for filming herself engaged in sexual conduct and sending the video to her teenage friends. The court held that, under the plain language of the statute, the 16-year-old could be both the pornographer and the subject of child pornography. (In re S.K., 215 A.3d 300 (Md. Ct. App. 2019).)
Penalties. A conviction for child pornography is a felony punishable by:
(Md. Code Ann., Crim. Law §§ 1-101, 11-101, 11-207 (2020).)
For more information on child pornography laws, see Child Enticement Laws in Maryland.
Showing or sending a minor (younger than 18) obscene images depicting sexual conduct or nudity constitutes a misdemeanor. This section applies to both acts by adults and minors who share obscene material with minors. In the S.K. case (discussed above), the 16-year-old who sent the obscene video of herself to other minors was found guilty under this section as well.
A first violation carries a penalty of up to one year's incarceration and a fine up to $1,000. A person who commits a second or subsequent violation faces prison time of up to three years and a fine up to $5,000.
(Md. Code Ann., Crim. Law §§ 1-101, 11-101, 11-203 (2020).)
Maryland also makes it a crime 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.
Defense. It's a defense to a charge of possession of sexually explicit material that the defendant promptly destroyed the image or video or notified law enforcement.
Penalties. A first offense constitutes a misdemeanor punishable by up to 5 years' incarceration and a $2,500 fine. For a repeat offense, the penalty increases to a felony that carries a maximum sentence of 10 years in prison and a $10,000 fine.
Under this section, a person who receives a sexually explicit image of a minor, even unsolicited, and keeps the image could be found guilty of a misdemeanor.
(Md. Code Ann., Crim. Law §§ 11-101, -208 (2020).)
Minors under the age of 18 who are charged with a crime generally fall under the jurisdiction of Maryland's juvenile justice system. The juvenile justice system tends to focus more on rehabilitation and treatment than the adult criminal justice system.
Depending on the circumstances, though, a minor could end up in adult court. Maryland allows a minor who is 15 or older to be transferred to adult court. A minor who is tried as an adult will face adult penalties, such as prison time and sex offender registration.
(Md. Code Ann., Cts. & Jud. Proc. §§ 3-8a-03, -06 (2020).)
In Maryland, an adult or minor tried as an adult who is convicted of child pornography or possession of sexually explicit material must register as a sex offender. Minors adjudicated in the juvenile system do not have to register as sex offenders for these offenses.
(Md. Code Ann., Crim. Proc. §§ 11-701, 11-704 (2020).)
If you are charged with child pornography or any other crime as a result of 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 time 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.