What is Prohibited?
Maryland prohibits the two main aspects of child pornography, the making of it and the possession or use of it. The child porn statute in Maryland prohibits five different aspects of the creating or distributing side of this crime:
- Causing or allowing a minor to be in a production of obscene material depicting the child in sadomasochistic (whipping, torture, binding, etc.) or other sexual conduct (masturbation, sexual intercourse, touching of the genitals, buttocks, pubic areas, or breasts of a female alone, with others, or with an animal)
- Photographing or filming a minor engaged in those behaviors
- Using a computer to depict a minor doing any of these sexual activities
- Knowingly promoting, advertising, or distributing any material or performance depicting a minor in sexual conduct or sadomasochistic abuse or making it appear a child is engaged in those sexual behaviors
- Use a computer to knowingly compile, transmit, make, reproduce, buy, sell, or advertise a child's name, number, address, or other information to facilitate, offer, or solicit sadomasochistic abuse or sexual conduct with the minor
Possession of child pornography is also illegal. A person can't knowingly possess or intentionally hold on to a film, photograph, or other representation of a child under 16 years old engaged in sadomasochistic abuse, sexual conduct, or in a state of sexual excitement (the genitals or female breasts are sexually stimulated).
A person creating child pornography could also be convicted of other crimes, for example Sexual Solicitation of a Minor, Sexual Abuse of a Minor (includes rape, sodomy, incest), and Sexual Offense (of any of the four degrees or level).
Child pornography (of the five types described above) is subject to up to 10 years imprisonment and a $25,000 fine for the first offense and up to 20 years and a $50,000 fine for each subsequent violation.
The state doesn't have to identify the minor involved and the judge or jury can decide if the individual in the materials is a minor based on observing the material, oral testimony of witnesses, expert medical testimony, or other applicable methods.
Possession of child porn for the first offense is a misdemeanor with imprisonment of not more than 5 years and a fine of $2,500 or less. However, future convictions of this crime are felonies that can be punished by up to 10 years in prison and a fine up to $10,000.
Additionally, conviction for possession of child pornography will make you a Tier I registered sex offender in Maryland. You will have to remain on the sex offender registry for 15 years. Conviction of the creation or distribution of child pornography will get make you a Tier II registered sex offender with 25 years on the registry. Other sex crimes or multiple convictions for either of the child porn crimes can get you on the sex offender registry for life. Being on the sex offender registry will severely impact where you can live and work.
Maryland laws provide several affirmative defenses to child porn related crimes, including that a person promptly and in good faith destroyed the child porn or reported it to the police. This may happen when someone is browsing porn on the internet and accidentally is routed to child porn. Also, parents can have pictures of their own child in the nude (such as the classic, adorable naked baby on a bearskin rug photo). However, parents, like everyone else, can't have pictures of their own children nude if it's a sadomasochistic or sexual photo.
Additionally, persons can have a scientific, educational, governmental, artistic, news piece, or other justification for the possession or distribution of the prohibited child porn materials, which then aren't subject to these penalties. However, the justification isn't in good faith (and therefore isn't an available defense) if a reasonable person would think the primary purpose of the depiction of the child under 16 engaging in sexual conduct was for the sexual arousal or gratification of anyone.