A 16-year-old Maryland girl — identified only as “S.K.” — is facing child-pornography charges because she made a video of herself performing a consensual sex act and sent it to a couple of her close friends.
According to an article in Reason, S.K. shared a video of herself performing oral sex on an unidentified, age-appropriate male and sent it two of her classmates, only for those classmates to then go and tell school resource officers on her. She was the only one who was charged with a crime — and convicted.
As crazy as it sounds, the state’s Special Court of Appeals upheld S.K.’s child-pornography conviction, arguing that it didn’t matter whether the act was consensual. According to the court, although it was not illegal for S.K. to perform the act itself, taking a video of it and sending it to people amounted to distributing child porn.
“The First Amendment to the United States Constitution did not protect conduct of a minor who distributed digital video file of herself engaged as a subject in consensual sexual conduct,” the court stated.
It will now be up to Maryland’s highest court to decide whether or not S.K.’s charge stays. It heard oral arguments on the case in February, and is expected to rule on it later this year.
S.K.’s attorney, public defender Claudia Cortese, has argued that the statute that the state is using to charge S.K. was never intended to punish children, but rather to protect them.
The prosecutor, however, argued that S.K. needs “some guidance, rehabilitation for something deeper” and that she should probably have to undergo a mandatory health evaluation and serve time on probation. What’s more, the prosecutor also insisted that the state “is just trying to help” S.K.
Now, I have absolutely no doubt that a young girl who takes a video of herself performing a sex act and then sends it to people very well might be in need of “some guidance.” What I don’t understand is this: Just how in the hell does anyone actually think that a criminal charge is going to be something that will “help her” in any way at all?
Now, since S.K.’s case was in juvenile court, she thankfully doesn’t have to worry about having to register as a sex offender or serving a mandatory sentence. Rather, she was just referred for a mental-health evaluation and put on probation. The thing is, though, this is something that the law should never have been involved in at all.
Cortese is absolutely right: Child-pornography statutes were intended to protect children, not to punish them — and the way that the state is using this statute is nothing short of draconian. We all know why child-pornography laws were put into place, and it was not to punish minors for what they choose to do with their own bodies. If both parties are legally able to consent to engage in an act, one party shouldn’t be punished for filming it. Think about it: In what other case would filming something totally legal, and then sharing the video, constitute a crime? I can’t think of a single one, and it shouldn’t constitute one here, either.
The purpose of criminal law is to deter people from hurting others, and to punish the people who do. In this case, however, S.K. did not inflict anything upon another victim — so the law certainly should not be used to punish her. If anything, she’s now in a terrible, humiliating situation herself, and having to go through all of these legal proceedings and deal with probation is the last thing she probably needs during this already difficult time. She didn’t hurt anyone with her actions, with the possible exception of herself, and so there is no reason the state should be punishing her and making things worse.
Let me be clear: The law states that S.K. is old enough to decide what to do with her own body, and she should be able to film her decisions without facing punishment from the state. Did she make a good decision? No, I would say certainly not, but this is something that could be far better handled outside of the justice system, via guidance from the school’s counselors and S.K.’s parents or guardians. She very well may need help, but a great place to start helping her would be to stop making things worse.