KOJO NNAMDIThe state of Maryland ruled almost two weeks ago that a teenage girl had distributed child pornography of herself when she texted a video of her engaging in a sex act to two friends. Even though sexting is an increasingly common practice among teenagers and young adults, officials in Maryland have been trying to crack down on it for a while.

NNAMDIThe following clip is from a PSA paid for by the Maryland Governor's Office of Crime Control and Prevention. It premiered earlier this year. In it, a high school football player sends racy texts that his team, family and total strangers end up seeing, also.

NARRATORIt may seem like just a picture or a video.

MALE #1Hey, man, you coming?

MALE #2I'm coming, bro.

NARRATORBut once sent, you can't take it back. Digital information lasts forever, and you have absolutely no control over who will share it or who will see it.

MALE #3Nice pic. (laugh) Get on the bus.

NARRATORThink before you send. It only takes one picture to change your life.

NNAMDIAnd last October, Governor Hogan's office put out a list of cybercrime prevention tips, one of which read, quoting here, "Sexting is child pornography and punishable by law." But this is clearly different than what most of us think of when we think of child pornography laws. And does it make sense to criminalize what's become relatively common practice among teens?

NNAMDIDuring this discussion, we'll be mentioning child pornography laws, as well as sexting as a practice. We won't be getting graphic, but in the interest of transparency, listener discretion is advised. Joining me in-studio is Michal Gross, an assistant public defender with the Maryland Office of the Public Defender. She represented the female student, S.K., in juvenile court. Michal, thank you for joining us.

MICHAL GROSSThank you so much for having me.

NNAMDIAlso with us is Mary Graw Leary. Mary Graw Leary is a professor of law at the Catholic University here in D.C. Mary Graw Leary, thank you for joining us.

MARY GRAW LEARYThank you for having me.

NNAMDIMichal, let's start with the basics. What was the chain of events that led to the defendant going to court? She was identified in court only by her initials, S.K. And since she is still a minor, so will we be referring to her in the same way.

GROSSAnd thank you, I do appreciate protecting her privacy like that. What the decision really outlines is the process through which this case came to court. And so, as the decision outlines, S.K. met with the school resource officer after a video had circulated, a video that she had sent to two friends. And it was a video of a consensual sexual act. Both parties were--had agreed to the sexual act.

GROSSShe sent that video to her friends, as a joke. Those friends then reported that to the school resource officer. The school resource officer called S.K. into his office, asked her questions about that, and then eventually charged her.

NNAMDIWhat was she charged with initially by the school resource officer?

GROSSSo, initially, there were three charges that were before the court. The first charge was distribution of child pornography. There was another charge for the production of child pornography. And there was a third charge for displaying an obscene matter to a minor.

NNAMDIAnd she was charged as a juvenile, correct? What would have been different if she'd been tried as an adult?

GROSSSo, the difference between juvenile court and adult court is the privacy in juvenile court is protected. That's why we're using the name S.K., and that's why the opinion uses the name S.K., and not her real name. Other differences would be the consequences that she faces. The opinion does outline the consequences that S.K. faced. Those would be different if she was in adult court.

NNAMDIDo we know why the friends who sent S.K.'s video to others were not prosecuted?

GROSSSo, that's not anything that I can comment about. That's a decision that's made on the prosecution side.

NNAMDIMary Graw Leary, since we don't know the definite answer -- this is pure speculation -- but from a legal standpoint, why might a prosecutor not have wanted to charge these other students?

LEARYThat's a great question, Kojo. I would say these kinds of cases really are difficult for prosecutors, for a number of reasons. One is they bring together two lines of jurisprudence. One is our child pornography laws, which are designed to protect children from the harms of child pornography, which includes children in the images, as well as the harms that flow from the distribution of child pornography and its circulation.

LEARYBut on the other side of the coin there is, of course, juvenile law, which, as Ms. Gross quite aptly pointed out, is designed to be an alternative court system for juveniles, where they are rehabilitated, and which is less severe punishment. So, as a prosecutor, you're trying to sort through the facts of your case to decide whether or not this case merits prosecution at all, and if so, should it be in juvenile court or somewhere else.

LEARYThere's a little bit of research on this topic from the University of New Hampshire, and essentially, this isn’t a situation where prosecutors are prosecuting youths in what we would call a garden-variety, self-produced child pornography case. You know, one image, et cetera. And what prosecutors have reported in preliminary research is they look at an umber of factors, including the role of the juvenile involved, how far it was disseminated, whether or not the child has been amenable to rehabilitation before, and whether or not other youth have been brought into the images, as well as the severity of the images.

NNAMDISo, Michal, now at the appeal stage, what were the questions the court was grappling with in this most recent ruling?

GROSSSo, the most important question before the court was whether or not a minor can be charged with distribution of child pornography for sending around a video of herself engaged in consensual, legal sexual behavior.

NNAMDIWhat do Maryland statutes about child pornography say? What were they designed to cover?

GROSSSo, the statutes at question in this case, and the statutes around child pornography are really -- were designed to prevent the exploitation of children. They don't address issues such as sexting, and that's because when these statutes were passed, when these statutes became law, sexting was not something that was really considered by the legislature.

NNAMDIApparently, there are quite a few broad implications here, because whether digital information is the same as material information has long been a point of contention in the legal system. And I guess that's one of the things the Court of Appeals was also looking at.

GROSSThat was a question before the Court of Appeals. One of the charges discussed -- an enumerated list of items, all of which predated digital cell phone videos. The word that was used was "film." And the Court of Special Appeals, the lower court in Maryland, found that the video, sent as a text message, did not fit within that definition of film.

GROSSThe Court of Appeals overturned that decision, and said that a film sent digitally through a cell phone, through a text message, could violate that statute.

NNAMDIMary Graw Leary, you've done lots of work on the legal nuances of defining and eradicating child pornography. As the law is written, does child pornography have to be created by an adult, or in an exploitative situation?

LEARYIt absolutely does not. So, it's important for our listeners to understand that child pornography is defined by the image itself, and that has been true since the 1980s, in the first Supreme Court case that addressed this. If the image is a visual depiction of a child engaged in certain sexual conduct -- which is laid out in the statute -- it is child pornography. And the Supreme Court -- no state that I'm aware of, and certainly not federally, has there ever been a defense because it was produced by a minor.

LEARYWhat has happened is -- and the reality of that is that the harm that the court has outlined and that the legislatures have outlined is the images are harmful in and of themselves. There's a lot of discussion often that, well, if the event was consensual and legal, then the images, it must be okay to photograph them. But that's never been the law.

LEARYIn fact, the first Supreme Court case, there was not a sexual assault, and it did involve just minors. But the Supreme Court was still concerned about the spread of child pornography, and those harms are not taken away if the circumstances of production are -- involve only minors.

NNAMDISo, to be clear, without exploitation by any adult, if this content is created by consenting teenagers, it is still criminal?

LEARYThat is correct. Now, what has happened in the advent of child-produced child pornography -- which is another label for sexting. What has happened is several states have created alternative laws, because of this tension between those two lines of cases that I mentioned -- the desire to recognize that juveniles do not fully appreciate when their criminal activity -- they don't fully appreciate the results of their actions.

LEARYAnd also the recognition that images of child pornography are harmful and exploitive. The Supreme Court recently reaffirmed this in a case called Paroline, which talked about the harm of just possessing these images once they are out, never to be retrieved again. And so what many states have done is created alternative pathways or alternative charges, or requirements that it be handled in juvenile court, or that sort of thing, so that the penalties associated with child pornography are not felt with their full force.

LEARYAnd I think it's important to add, behind a lot of these new statutes, in fact, are prosecutors. The National District Attorney's Association president urged legislators to consider that, because we don't want to decriminalize this and have no penalties, because some of these cases can be quite egregious. But at the same time, we are not interested in treating them as the most egregious of cases, because that's the only charge that's available.

NNAMDIHere is Charles in Silver Spring, Maryland. Charles, you're on the air. Go ahead, please.

CHARLESYes, thank you, Kojo. I just had two, maybe three concerns. One, this continues to me to look like over-policing of juveniles. I didn't really like the euphemism of speaking about the school resource officer. That was a police person in the school. My second concern is that I think, invariably, this will be applied to brown and black children.

CHARLESI think one of the previous cases involved a black male who was asked by a white female to send an explicit picture. He responded with the picture, and the prosecutors prosecuted him, even though it was the white female that asked for the image. And third, we continue to see how this is -- justice is not really applied well.

CHARLESWe have several cases of rapists who've gotten off with, you know, probation, we have the egregious case in Stanford. So, here again, we have a female juvenile convicted, and those are my three concerns. Uneven application, targeting black and brown children, eventually, and this over-policing of children. And I'll let the panel respond.

NNAMDIThank you very much for your call, Charles. Care to respond to that, Mary Graw Leary?

LEARYSure. I think that these are all sort of the struggles, right, of this space. I think it's important to underline it's not -- in our earlier discussion, we talked about, are we criminalizing common juvenile behavior? It's important to understand, it was already illegal. The images were illegal. And then this behavior surfaced as an advent of cell phones and technology, et cetera.

LEARYI would say the research just tells us that we're not over-policing this. That typically, these cases don't make their way to charges. And when they do make their way to charges, the limited research that we have in this space tells us that that's because there is something else going on in the case. I think it's important also to understand these are -- we can't have a cookie-cutter solution.

LEARYThe facts around production can be two people exchanging images in private. It can also be a film where one person doesn't know they're being filmed. It can be a situation where there's a third party filming and sending these things out. It's very complicated, and it's important for prosecutors to have some discretion to know what to do in these situations. And I think that's why no state, to my knowledge, has just decriminalized it if it's a minor.

LEARYBecause, sometimes, the prosecutor also -- if somebody is a juvenile, sometimes this is an opportunity to get services for a juvenile before they become an adult and they will face felony charges.

NNAMDIMichal Gross, it's my understanding that part of the debate here was whether one person could be both the person and the exploited minor in the statute. Can you explain that?

GROSSYes. So, as I think we've discussed quite a bit, the purpose of these statutes was really to prevent the exploitation of children, with the assumption being that children were being exploited by adults, and that was the concern. What the court in this case said is that a minor -- here a 16-year-old -- can be both the subject of this video and also the perpetrator -- the person producing the child pornography, the person charged with distribution of child pornography. Instead of differentiating between the two, the court said that they could be one and the same.

NNAMDIWas S.K. above the age of consent when this all happened, and does that even matter?

GROSSYes, she was above the age of consent. In Maryland, that's been determined to be 16 years old. What the court said is that that does not matter. That -- that is a decision that -- you know, that is the court's opinion. I can't really speculate as to why they were of that opinion. The explained a little bit their reasoning behind it -- that she was still a minor that needed to be protected. But I think, you know, part of the concern is that this was consensual behavior, and something such as sexting is -- has really become normal adolescent behavior.

GROSSThat might be something that many disagree with, but it has become normal adolescent behavior. And I think part of the problem and something that the court did really address is that a 16-year-old should not be criminalized for engaging in something that has become normal adolescent behavior -- specifically, the sexting.

GROSSAnd then the concerns about this being a consensual act. What the court did do, though, is they issued a call to the legislature to change these laws. That's in both the majority opinion and really outlined in the dissent -- why there's a problem with prosecuting children for this behavior, the same people who this statute was designed to protect, and what we can do to change that.

NNAMDIMary Graw Leary?

LEARYIf I could just comment a little bit on a couple of things. The idea that it's normalized behavior -- I don't think the research is there. There is a lot of research in this space, but definitions really matter. And when we talk about behavior between teens, there's -- sexting is often defined to both include text and images.

LEARYSo, I don't think the research would say it's normalized behavior yet. But I would say -- and the court, not so much here in Maryland, but in other states, have talked about this -- just because something is normalized doesn't mean we decriminalize it. So, for example, we still hold minors liable at times for possession of alcohol, even though probably most minors do possess alcohol at some point in their teenage years.

LEARYThe law, and the Supreme Court's been very clear, has a compelling -- the state has a compelling interest to protect children from exploitation from themselves or others. Now, that's not to say, therefore, let's prosecute all these cases. I think what it is to say is exactly what Ms. Gross said -- the court has suggested that Maryland follow these other states and come up with alternative charges because it is a really complicated issue.

NNAMDIWe got a tweet from Taxation Without Representation, who says: This means teens who have no idea about the laws or the punishments get branded for life for sending or receiving nude photos. It's an overreaction to a problem that has a thousand better solutions. So, let's talk solutions for a minute, here.

NNAMDIMaryland's laws dealing with child pornography were written decades ago, before texting, before sexting really existed. How do legal scholars, Mary Graw Leary, how do legal scholars figure out how to apply the law as we get new means of communicating?

LEARYNo, it's a great question, which certainly surpasses this issue. Right? How does the criminal law keep up with technology and with behaviors? And it's a challenge. And I would say you've seen states do a lot of different things, as I said. Some of them will have mandatory education. Some of them will require it be a status offense.

LEARYSome of them will require go to juvenile court, and many other options to sort of lessen the impact of this. So, it is a constant struggle. I would say, with the tweet, that the idea that a student is branded for life -- this is a key component of some states will require that it be part of education in the schools.

LEARYIn fact, one state even required, or tried to require, at the point of sale of a cell phone, there be a pamphlet in there about the implications of sexting. So, this definitely has to be a multidisciplinary approach, where we're looking at prevention, education, social work. But then there's a role for the law if prevention fails and if people are exploited. And the child pornography that is out there circulating, that is what the court and legislatures are trying to prevent and respond to.

NNAMDIGotta take a short break. When we come back, we'll continue this conversation about the teen sexting case in Maryland and the implications of it. I'm Kojo Nnamdi.

NNAMDIWelcome back. We're discussing the implications of the teen sexting case in Maryland with Michal Gross, an assistant public defender with the Maryland Office of the Public Defender. She represented the female student, S.K., in juvenile court. Mary Graw Leary is a professor of law at the Catholic University here in Washington. Mary Graw Leary, so does this question of whether teen sexting is criminal come up often in courts?

LEARYWell, in the courts that have decided it, I think almost uniformly, it has been found to be criminal. There is no age of minor defense, per se, in your original child pornography offenses. I would say, though, that these cases do not seem to make it into court very much, for a number of reasons. Frankly, child exploitation prosecutors have a lot on their plate, a lot that is very serious and violent and immediate.

LEARYAnd so these types of cases, I think, are not percolating to the front of the desks of prosecutors. That being said, obviously, they are prosecuted at times here, and this case in particular. And, again, what prosecutors tell us is when that happens, there are usually other circumstances around it. And in this particular case, as in many, they are in juvenile court, so we're all at a little bit of a disadvantage, right?

LEARYBecause we don't know, A, what the prosecutors knew, and also we don't know other components which may have come up in the hearing. And so it's a hard thing to measure.

NNAMDIMichal Gross, what do you see as the broader implications of this ruling for similar cases?

GROSSWell, I think part of the problem here is that we're leaving too much in the hands of local prosecutors. It's a concern that Judge Hotten really put in her dissent. It's in the footnote on page 11. This case got here through the exercise of prosecutorial discretion, as the dissent highlights. And whether someone is prosecuted really shouldn't depend on which county the live in, which school resource officer -- which is the police in schools -- they interact with, which prosecutor decides whether or not to go forward with the case.

GROSSThat's something that shouldn't be allowed to continue. And that's something that the majority decision really calls for in asking the legislature to change this law.

NNAMDIWe got a tweet from Ileana, who says: Unless the first sexter realized the picture was going to be further shared, then the non-consensual sharing by the recipient is a harm to the student. Those people should be prosecuted. We discussed earlier why the prosecutor may have made the decision not to prosecute the people who sent the video to others, including school resource officer.

LEARYRight. And that I don't know. I mean, the facts -- and I think the court expressed having some trouble with these other youths involved in the case, and why they're not prosecuted, so I can't say in this case why that happens. But the caller makes an excellent point, and many have focused on the distribution piece as an essential component to look at.

LEARYIf I could just say a comment on prosecutorial discretion: whether there's a new law in place or not, prosecutorial discretion is always an issue. If there is an available charge, prosecutors decide whether or not to charge. That won't go away by creating an alternative charge. But what is important, I think, is that prosecutors think about what factors merit prosecution and what do not, and apply them consistently for exactly the point Ms. Gross is making, that it is not a haphazard approach.

NNAMDIHere now is Caitlin in Germantown, Maryland. Caitlin, you're on the air. Go ahead, please.

CAITLINHi, thanks for having me. I just wanted to say, so we are -- we have an exchange student this year, and it means we've become instant parents of a 15-year-old, which was very different from parenting our one-year-old. And we had to have all kinds of conversations about things that haven't been on our radar before, like sexting and how that would affect our student. And I think that the idea of ignoring something just because it's a common behavior is dangerous and harmful to students.

CAITLINIt doesn't teach them what to do or how to handle themselves, you know, when we get to a point when it's no longer ignored. And I think that there's a whole lot of other issues at stake here, like sex education and communication skills and social skills, and all kinds of other things that are also a part of why sexting has become such a big issue.

NNAMDI(overlapping) Caitlin, have you spoken with the 15-year-old in your care specifically about sexting?

CAITLINWe have, yup, the week he arrived.

NNAMDIOkay. And how did he respond?

CAITLINWith some great embarrassment that these complete strangers were talking to him about sexting. But he -- you know, we told him that it was a problem here, and that it was not something he should ever engage in on either end. And that if he found himself in a situation that he was uncomfortable with, he should come to us or another grownup.

NNAMDIOkay. Thank you very much for your call. And, obviously, this is going to be a part of the sex education curriculum in a lot of schools, even as we speak. But Mary Graw Leary, this ruling this doesn't quite sit right for lots of people. Do you think the problem here is in the court's rationale, or in the law itself?

LEARYI think that it's important to look at this case twofold, and you're quite right. From a pure legal perspective, I would say that this is not a problematic ruling, in this sense. The job of the courts, when they have to interpret a statute, the first rule of statutory construction is plain language. And they read the statute consistent with what every other state has read about similar-worded statutes, that there isn't any ambiguity in the language.

LEARYAnd that was what the trial court decided, that was what the intermediate appellate court decided, and six-to-one, that's what the state court decided. So the court -- I think very correctly -- applied the rules of statutory construction in terms of not making something illegal that they are not supposed to, or making something legal in contravention to legislative intent. That being said, I think the court did a responsible matter by saying, having said, we're going to conclude that this is not an ambiguous statute, and we are going to stay in our lane due to separation of powers, which is their constitutional duty. We want to raise the invitation to the legislature to revisit this and perhaps consider following suit with other states to have alternative charges available.

NNAMDIYou mentioned following suit with other states. How unique or how common are Maryland's laws that don't take sexting into account?

LEARYA slight majority of states, by my last count, do have some alternative charges available to the prosecutors. But Maryland's statute is a very typical statute. In fact, it was recently amended after sexting was very much in the public discussion, to have its definition of the content of the images to mirror that of federal court.

LEARYSo, the statute itself is not an outlier, and I will say that in some of the states that have come up with other charges, they don't necessarily preclude the prosecution from charging child pornography. But what they do is give them that option, which, of course, most of them want to take.

NNAMDIIleana wrote on Twitter: I think that convicting the young person who sends an image of his or herself with no intent for the images to be further disseminated is cruel and stupid. Michal, what role does intentionality play here?

GROSSWell, what the court said is that there is no role of intent. Intent does not actually matter in the court's decision. But I think that's definitely something that we have to consider when we're talking about whether or not this should be criminal behavior, whether or not the intent was to further disseminate this. And as I think the opinion makes clear, S.K.'s intent was to send it to two of her friends as a joke. It may have been risky behavior, it may be behavior that obviously led her to further risk of exploitation, but that was not her intent.

NNAMDIYou see the way that Maryland's legal system handles teen sexting as problematic. How do you think it could be improved? What have other jurisdictions done, part of which was explained by Mary Graw Leary?

GROSSWell, I think one of the ways that it can be improved is by decriminalizing this behavior. Understanding that this, like many other behaviors that teenagers engage in, is risky behavior. I think Caitlin, who called in, said that she had a conversation with her -- the exchange student about sexting. She probably also had a conversation with that same exchange student about underage drinking.

GROSSIt's a conversation that parents have been having with their children for generations. It involves quite a bit of risky behavior, but our laws treat that as a civil infraction, an alcoholic beverage citation. They don't treat that as criminal behavior, and they don't treat that as something on par with adult child pornography.

NNAMDIMary Graw Leary, so, how often does it happen that a court explicitly asks lawmakers to fix a law that doesn't make sense?

LEARYI don't have numbers as to that, but, of course, there are times where courts follow their rules of statutory interpretation, and they recognize it is not for them to create the law, it is only for them to interpret it consistent with legislative intent. And when they have had to do that and they don't like the outcome in the case in front of them, it's not unheard of that they will request either the legislature to make a change, or sometimes they'll say for those who disagree with this decision, bring your arguments not to the court, but bring it to the legislature, as this could be a place of discussion.

LEARYIf I could just make one other point about the decriminalization, if that's okay, one of the tricky things here is that the images themselves, right, are child pornography. And if we were to decriminalize on the production end, like, the very first time, as it gets circulated, what will happen to the fifth person, to the adult who is now possessing child pornography, having no understanding of the circumstances of its production? Is that no longer child pornography?

LEARYAnd I certainly don't think that's what is being suggested, but that's sort of a tricky legal piece, is how can something that is defined by the content of the image not be child pornography when one person sends it, but then it is later on down the line. And I think the court did mention -- at oral argument, it certainly came up -- that this would create a giant loophole where then prosecutors would have to prove at production it wasn't consensual.

LEARYAnd that would be -- open a door I don't think we want to, to circulating child pornography, and also be inconsistent with the very first decision on this, Ferber versus New York, in which those images were all juveniles. There was no adult involved in the visual image that we saw.

NNAMDIHaving said that, what, therefore, is your suggestion for how child pornography laws could be more, well, versatile?

LEARYWell, I think that, like I said, I think my suggestion would be to create alterative charges for prosecutors. I think that's one piece. But I do think it's a multidisciplinary response. Students have to be aware of the implications of this, both socially, as well as legally, and we also have to have what I call structured prosecutorial discretion.

LEARYOutline of factors that are appropriate to consider, so that we don't have inconsistent application. The bottom line is, this can't be a cookie-cutter solution, and the extremes don't make the most amount of sense, either to decriminalize -- that doesn't make sense, and we don't do that in other contexts of criminal behavior -- as well as to only have child pornography as an option for the prosecution.

LEARYWe have to have things in the middle, and hopefully, when we're dealing with juveniles, it doesn't even get to that point. I think it's important to point out that children who've been exploited in this way -- both self-produced child pornography -- as well as others, experience a number of harms, which include psychological harm, depression, increased risk for suicide, and increased risk for eating disorders and anxiety. So, there are very real consequences, whether it's self-produced or produced by others, that we can't ignore.

NNAMDIMichal Gross, the court of appeals is the highest court in Maryland. Are there plans that you can discuss at this moment to further appeal S.K.'s case?

GROSSSo, as I mentioned at the beginning of the hour, I am the attorney who handled the case at the trial level. Our Appellate Division would be the ones to make the determination about whether or not there are any steps moving forward.

NNAMDIAnd Quint sent us an email, Mary Graw Leary: Why isn't sexual expression protected as a form of speech? Were S.K. over 18 years old, would this be a problem?

LEARYWell, that would be a different set of laws. So, in the First Amendment, obviously, protects speech, and there are some categories of unprotected speech, one of which is obscenity. Right? So, if something is obscene, it is not protected. So, some sexual expression might be protected, but if it meets the legal definition of obscenity, it will not.

LEARYAnd what the Supreme Court said is when it comes to children, however, it doesn't need to be obscene. If it fits the definition of child pornography, that has added protections. So, if she were over 18, judging from what is available about the content of this video -- it was a graphic video, and it did involve an adult male and S.K. It may or may not be obscene; I think it would be a matter for the fact-finder.

NNAMDIMary Graw Leary's a professor of law at the Catholic University here in Washington. Thank you so much for joining us.

LEARYThank you for this important discussion.

NNAMDIMichal Gross is an assistant public defender with the Maryland Office of the Public Defender. She represented the female student, S.K., in juvenile court. Michal, thank you very much for joining us.

GROSSThank you so much for having me.

NNAMDIThis conversation about sexting laws was produced by Maura Currie, and our update on the Hong Kongese community in the D.C. area was produced by Monna Kashfi. I'm Kojo Nnamdi.