Maryland Legislators Pass Bill That Would Keep Most Teens From Being Prosecuted For Sexting

from the more-helping,-less-hurting dept

It's been a delayed reaction, but legislators are finally trying to do something about the horrific outcomes that result from advances in technology colliding with laws that have been on the books for decades. Smartphones are omnipresent and teens are using them just like adults use them. Sexting -- the sending of explicit images to willing recipients -- shouldn't be illegal. And yet it is because some of those participating in this consensual distribution of explicit images are minors.

Operating under the belief that no one engages in sexual acts until they reach the age of consent, law enforcement has managed to turn this form of communication into a lifetime of misery for participants. Perhaps the most disturbing aspect of using child porn laws to prosecute minors for sexting is the fact that actual sexual acts would be legal under the same set of laws.

Rather than allow parents to handle sexting by minors, prosecutors have stepped in to turn consenting teens into sexual predators, even if they've done nothing more than send images of themselves to another teen. There's a massive logical leap that needs to be made to turn a teen photographing their own body into their own child pornographer, but cops and prosecutors have been willing to bridge that gap over reality to prematurely end these teens' lives. Charges stemming from child porn charges -- even when the teen has done nothing but "exploit" themselves -- come with a lifetime of downsides, thanks to sex offender statutes.

Maryland's legislature is trying to mitigate the damage done by existing laws -- ones passed by legislators who could not have possibly foreseen teens willingly (and easily) distributing sexual images amongst themselves. The absence of any actual child pornographer isn't something addressed by child porn laws, so the Maryland legislature has decided to make it a bit more difficult for prosecutors to convert questionable judgment calls by teens to criminal charges.

A bill that defines how to handle juveniles charged with sexting in Maryland passed in the House with a wide majority on Wednesday.

The bill, which passed on a vote of 131-8, doesn’t legalize sexting for juveniles, but it defines certain cases that aren’t a part of child pornography laws.

In addition to defining certain cases, HB0180 states that a juvenile in violation would not be committed to custody — unless there are extraordinary circumstances — and would not be subject to register as a sex offender.

It's not great. (But it's still pretty good.)

"Great" would be terminating any prosecutorial options for the consensual sharing of explicit images between teens. But it's better than what's out there now, which allows prosecutors who've never exercised discretion in a positive way from railroading teens into a lifetime of sex offender list misery.

What it does do is blunt the most harmful edges of existing law. Non-consensual sharing would still be a crime, but no teen can be considered a producer or possessor of child porn unless they're over the age of 18. It also considers sexting to be a crime if the participants are more than four years apart in age, something that aligns sexting provisions with state law on consensual sexual acts between teens.

But there are still concerns. First, the bill [PDF] may have been passed but there's no guarantee it will become law. Second, it still gives prosecutors a lot of leeway when it comes to prosecution of edge cases. But hopefully it will deter the sort of insanity that inspired this legislation.

All three House bills were drafted in response to a case in 2019 involving a teenage student who sent an illicit video of herself with a male to two of her friends, a video that was distributed by one of the friends to the rest of their high school.

Instead of helping, a school resource officer believed the teenager committed a crime, Lisae Jordan, executive director and counsel of Maryland Coalition Against Sexual Assault, wrote in testimony to lawmakers.

The student was charged in Juvenile Court with child pornography and obscenity.

It really takes a sick mind to view someone who's being subjected to abuse as a criminal. But that's just how some people think. This bill, if passed, will prevent idiots like this from treating the victims of non-consensual sharing of intimate images from being treated as child pornographers. Anything that strips discretion from people who've proven incapable of exercising it wisely is better than doing nothing.

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Filed Under: child porn, csam, maryland, sexting


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  • identicon
    Anonymous Coward, 17 Mar 2021 @ 5:48am

    Convicted teens might still have to register elsewhere

    One of the most confusing aspects of sex offender registry laws is that every state has their own laws with different requirements AND they count convictions (and often any guilty plea, even if it isn't prosecuted) from other states for vioations of a law that is "substantially similar" to the residential state's laws.

    As such, if a teen is convicted (but not committed to an institution) of a child pornography charge in Maryland, then moves to Georgia, they will still be required to register, possibly for life, even if the judge declares they don't have to. Many states don't even consider an expungement a valid reason to be removed from the registry.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2021 @ 5:52am

    ones passed by legislators who could not have possibly foreseen teens willingly (and easily) distributing sexual images amongst themselves

    What color is the sky on your planet?

    We had polaroid cameras when those laws were passed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2021 @ 6:12am

    "Great" would be terminating any prosecutorial options for the consensual sharing of explicit images between teens.

    And what happens when a 16 year old gets his 13 year old brother to record himself having sex with an 11 year old girl? Cuz that's where this will end up.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 17 Mar 2021 @ 5:15pm

      Re:

      And what happens when a 16 year old gets his 13 year old brother to record himself having sex with an 11 year old girl? Cuz that's where this will end up.

      Hopefully we can come up with a law that makes it clear small children cannot legally consent to sexual activity without criminalizing sexting among teens.

      reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 17 Mar 2021 @ 6:45am

    Maryland: “Well boys we did it. Sexting is no more.”

    reply to this | link to this | view in chronology ]

  • icon
    Black Camels (profile), 17 Mar 2021 @ 7:16am

    Virtual flirting

    Virtual flirting is not an acquaintance in a club: here they are more willing to show a member than just meet for a drink.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 17 Mar 2021 @ 8:13am

    So when are these cops, prosecutors and judges for aiding and abetting them, to be charged with child abuse?

    Oh right, it's not abuse if it's the law enforcers that are the ones destroying lives.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2021 @ 8:31am

    Considering the age of consent in Maryland is based on the ages of the participants, it is perfectly legal for a 15yo to sleep with a 12yo https://www.peoples-law.org/age-consent

    But heaven forbid if someone under 18 sends an image of themselves to their peer group. I can understand overzealous prosecutors going for this but you would think that judges would use some discretion.
    School Resource Officers should really know the difference as they deal with teens all day long - funny that the SROs always seem to be more into punishment than education considering they work with schools

    reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 17 Mar 2021 @ 9:57am

      Re:

      As long as the law rewards based on number of convictions, they will go after low hanging fruit like kids taking photos of themselves since posession of your own naked photo is illegal if your 17.

      Why do you think cops want access to phones so badly?

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 17 Mar 2021 @ 8:40am

    Definition of terms

    Police: Noun
    Prosecutors: Noun
    Judges: Noun

    Definition (US) see: Power Tripper

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 17 Mar 2021 @ 8:55am

    If this law would only cover sexting between minors, does that mean that a 15 year old could take a naked photo of themselves, send it to an adult that they don't like and then report that person for possessing child pornography?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2021 @ 9:47am

      Re:

      Probably. But in turn, the 15 year old would also be prosecuted.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2021 @ 1:22pm

      Re:

      Not a lawyer, but I suspect any 15yo doing that would still be on the hook for distribution, which makes the gesture rather Pyhrric.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2021 @ 4:50pm

      Re:

      Such an image would not be pornography, though I wouldn't be shocked if that distinction was lost in the "justice" system.

      Why would a person put themselves at risk by doing that, though? They could get an image off the internet instead, perhaps the infamous "Virgin Killer" album cover or something from a nudist forum, or the Traci Lords photos, or even actual exploitative child pornography.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2021 @ 4:58pm

    That is what is encryption is for. If I had children now, I would buy them samsung phones with encryption the "booby trap", as I like to call it, which causes the phone to wipe and reset after too many password attempts.

    When I eventually have children, all my childrens' phones will be Samsung models, all turned up to insane cop proof mode, so that if the phone is ever seized by an LEO, any attempt to brute force the password will result in the phone wiping itself and doing a factory reset

    There is no law in any of the 50 states that I could be prosecuted under for doing that to stymie investigators. Neither myself, nor my children, could be prosecuted for doing that to cause evidence to by wiped from their phones.

    when I go on road trips to Canada's Wonderland, I have my phone dialed up to that level when going through Michigan, because of the asset forfeiture laws there.

    If they should enter a failed password too many times, and the phones wipes itself and resets, there is no law in Michigan they could come later and prosecute me under.

    That "booby trap mode", in Samsung J7 and S8 phones does not break the law in any of the 50 states, or at the federal level. After 15 failed password tries, the phones wipes itself and resets, meaning anything that was there, is gone, and cannot be recovered, even by the best police forensic software.

    Also the phone will require your Google password before it can be set up again, so the cops could only used a seized

    If you go on road trips, like I like to, having a phone with insane cop proof mode like that is a must, because you don't know what may be on your phone they can used to muscle you into a plead deal.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 17 Mar 2021 @ 5:17pm

      Re:

      I think we've all read this comment by now, maybe no need to continue posting it on every story having something to do with law enforcement, encryption, or phones.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 18 Mar 2021 @ 1:20am

        Re: Re:

        "...maybe no need to continue posting it on every story having something to do with law enforcement, encryption, or phones."

        Or maybe there is. Consider any journalist crossing borders. Even if you trust US authorities (which indicates a bit too much naivety these days) i can imagine there are plenty of reasons to be able to deny the cvontents of your phone to authorities in, say, guatemala, nicaragua, or mexico.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 18 Mar 2021 @ 5:42am

          Re: Re: Re:

          You seem to be assuming I don't agree with the comment. I do agree with it, I just don't see the value in presenting it to more or less the same audience over and over again.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 19 Mar 2021 @ 6:26am

            Re: Re: Re: Re:

            " I just don't see the value in presenting it to more or less the same audience over and over again."

            Well, I may be dragging old injuries with me from my time as a DBA. I'm inclined to think that unless you regularly beat the audience over the head and neck with the basic guidelines and rules, you might as well toss the book of rules completely. 90% of your audience will forget lest forcefully reminded weekly.

            And of course there's always the chance there's a new reader led this way by a crosspost on twitter or FB.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2021 @ 7:35am

      Re:

      ... what does Samsung have to do with anything? Most phones have the option to reset after a certain number of failed logins.

      reply to this | link to this | view in chronology ]


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