In the past, teens in Maryland faced obscenity or child pornography charges for sexting, but a new Maryland sexting law (2021) aims to lessen the punishment for sending inappropriate pictures in the state.
- 180 3-8a-35, Maryland Sexting Law 2021 Summary
- Maryland Sexting Law and Child Pornography 11-207
- Maryland Sexting Laws and Possession of Visual Representation of a Child Under 16 11-208
- Maryland Sexting Laws and Federal Law
- Maryland sexting laws and solicitation of a minor
- Maryland sexting laws and revenge porn
- Maryland Sexting Laws and Unsolicited Nudes/sexts
Quick take:
- 180 3-8a-35 is Maryland’s new sexting law set to take effect on October 1st 2021.
- Under the new law, teens found guilty of sexting (petty offences) do not have to register as sex offenders.
- Depending on the facts presented, teens may face prosecution under the state’s child pornography, solicitation, and related charges.
- No crime is committed if the receiver takes reasonable steps to delete/erase the image, or report the incident to the appropriate authority (school, law enforcement or the sender’s caregiver).
180 3-8a-35, Maryland Sexting Law 2021 Summary
Under House bill 180, section 3-8a-35 Maryland Sexting Law, sexting refers to the act of sending sexually explicit photos, images, or videos of oneself to another using a computer, smartphone, or any other device capable of sending or receiving still or moving images. Teens accused of sexting in the past faced child pornography and obscenity charges which led to some having to register as sex offenders. Under the new law, the court may order teens accused of sexting or exchanging nude pictures to participate in age-appropriate educational programs on the risks and consequences of creating, publishing, possessing, and sending sexually explicit photos.
The law also makes solicitation, intimidation, or coercion an affirmative defense for the teen depicted in the video or picture.
180 3-8a-35, does not require convicted teens to register as sex offenders. But, Maryland’s new sexting law does not prevent prosecution for exploitation of a minor, child pornography, solicitation, coercion, and other charges related to sexting.
What is the Punishment for Sexting in Maryland?
If the offender is under 18, the court has three options under the new law. (1) The court may place the accused under home supervision, may order community detention, or place the teen on probation. (2) The court may place the child under the guardianship or custody of the Department of Juvenile Services, a licensed private or public agency, or the Maryland Department of Health. (3) Order the minor, parents, or caregivers to participate in rehabilitative services.
If convicted of child pornography in the juvenile system, the court may place the offender on electronic monitoring or under supervised probation. The teen may also have to inform law enforcement when he or she leaves the state or changes home address.
Affirmative Defenses
The new law makes it an affirmative defense to take reasonable steps to destroy or delete indecent photos sent by a minor. Reporting the incident to a law enforcement agency, or the sender’s caregivers/parents is also an affirmative defense.
Note: this new act will take effect on October 1st, 2021.
Maryland Sexting Law and Child Pornography 11-207
Note that in 2019, Maryland’s Court of Appeals held that nude selfies taken by a minor constitute child pornography. That means both the sender and solicitor/receiver may face charges. If the receiver did not solicit the image and takes reasonable steps to delete it, then no crime is committed. However, if the receiver displays the image or shares it with a third party. The individual may face child pornography possession and distribution charges.
What if either teen is from outside Maryland?
When a sexually explicit picture, video, or other media depicting a child engaged in sexual conduct crosses state lines or international borders, the sender and receiver may face federal and state child pornography charges. For minors this rarely happens, but it may happen if the teen has prior convictions.
“Section 1470 of Title 18, United States Code, prohibits any individual from knowingly transferring or attempting to transfer obscene matter using the U.S. mail or any means or facility of interstate or foreign commerce to a minor under 16 years of age. Convicted offenders face fines and imprisonment for up to 10 years.”
What Maryland child pornography law prohibits:
- Possessing, sending, or displaying sexually explicit pictures depicting a child.
- Knowingly exhibiting or displaying content that features an obscene image of a minor or partially nude figure.
- Engaging in any business that exhibits, sells, shows, or advertises obscene pictures depicting or describing obscene descriptions of illicit sex to minors.
- Inducing, soliciting, or allowing a minor to act as a subject in the production of obscene materials.
- Filming or photographing a minor engaging in obscene acts, sexual conduct, or sadomasochistic abuse.
- Use of an electronic device to describe or depict a minor engaged in a sexual act.
Section five makes it unlawful to knowingly use a computer to quote “compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.”
Violation of Child pornography laws in Maryland is a felony punishable by up to ten years in prison and a $25000 fine for a first violation, and up to twenty years in prison and a $50000 fine for subsequent violations.
What to remember:
- Each photo or video may constitute a separate offense.
- Convicted adults must register as sex offenders.
- Teens guilty of felony offenses may have to register as sex offenders.
Maryland Sexting Laws and Possession of Visual Representation of a Child Under 16 11-208
Section 11-208 “Possession of Visual Representation of Child Under 16 Engaged in Certain Acts” prohibits adults and minors from knowingly possessing or intentionally retaining a photograph, film, or any other visual depiction of a child below sixteen engaged in a state of sexual excitement, sexual conduct, or as the subject of sadomasochistic abuse.
The punishment for violating this statute is a misdemeanor punishable by up to five years in prison and a $2500 fine. If the accused has a prior conviction, the crime escalates into a felony -punishable by up to ten years in prison and a $10000 fine.
Sharing or disseminating sexually explicit photos or videos depicting a minor is punishable by up to one year in prison and a $1000 fine. Repeat offenders face up to three years in prison, and or a $5000 fine.
Maryland Sexting Laws and Federal Law
In Maryland, the age of consent is 16, but federal law prohibits anyone below 18 from creating and sending or receiving sexually explicit photos depicting a minor. Federal law also prohibits minors from taking part in explicit conduct.
It also illegal to:
- Solicit sexual conduct from a child using an electronic device.
- Request, coerce, or allow a child to create sexually explicit material or engage is sexual conduct.
FJDA (Federal Juvenile Delinquency Act) protects teen offenders from federal prosecution, but federal prosecution may happen if the activity happens across state or international borders. Adult offenders accused of child pornography(creation/production/dissemination), solicitation, or transmitting or receiving sexually explicit depictions of a minor, may face both state and federal prosecution.
Can a minor be transferred to adult court for sexting?
If the accused is above fifteen, prosecutors may seek adult charges under certain circumstances, for example, when a minor commits a serious felony. If transferred to adult court, the minor must register as a sex offender upon conviction.
Maryland sexting laws and solicitation of a minor
Soliciting and attempting to solicit a child to engage in sexual activity orally or through an electronic device is a punishable offense in Maryland. Note that soliciting a minor is both a federal and state offense.
Under Maryland criminal code section 3-324 “sexual solicitation of a minor,” solicitation refers to commanding, authorizing, urging, enticing, requesting, or advising a person to engage in unlawful sexual conduct.
The statute makes it a felony to solicit sex or attempt to solicit sexual conduct from a child via text message, internet, and any electronic device. The punishment is up to ten years in prison and or a $25000 fine.
Maryland sexting laws and revenge porn
Under Maryland code section 3-809. “Revenge Porn.” It is unlawful to intentionally cause emotional distress to a former partner or spouse by knowingly sharing or posting a photo or video of that person engaged in a sexual act or with his or her private parts exposed. That means anyone accused of disseminating intimate photos of anyone without consent or anyone accused of sharing a visual depiction of someone who had a reasonable expectation of privacy is guilty of a misdemeanor.
The punishment for violating this statute is up to two years in prison and a fine not exceeding $5000.
Maryland Sexting Laws and Unsolicited Nudes/sexts
Under section 3-804, making filthy, indecent, or obscene comments, requests, and suggestions via telephone is a misdemeanor punishable by up to three years in prison and a $500 fine.
If you are the victim of harassing calls or unsolicited sexts, you may take civil action against the offender.
Navigating these laws on your own is difficult, we recommend consulting with an experienced local attorney today.
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