EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
*sb0065*
SENATE BILL 65
E1 4lr1438
(PRE–FILED)
By: Senator James
Requested: November 1, 2023
Introduced and read first time: January 10, 2024
Assigned to: Judicial Proceedings
A BILL ENTITLED
AN ACT concerning 1
Criminal Law – Child Pornography – Prohibitions and Penalties 2
FOR the purpose of prohibiting a person from possessing certain child pornography under 3
certain circumstances; and generally relating to child pornography prohibitions and 4
penalties. 5
BY repealing and reenacting, without amendments, 6
Article – Criminal Law 7
Section 11–207 and 11–208 8
Annotated Code of Maryland 9
(2021 Replacement Volume and 2023 Supplement) 10
BY adding to 11
Article – Criminal Law 12
Section 11–208.2 13
Annotated Code of Maryland 14
(2021 Replacement Volume and 2023 Supplement) 15
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 16
That the Laws of Maryland read as follows: 17
Article – Criminal Law 18
11–207. 19
(a) A person may not: 20
(1) cause, induce, solicit, or knowingly allow a minor to engage as a subject 21
in the production of obscene matter or a visual representation or performance that depicts 22
a minor engaged as a subject in sadomasochistic abuse or sexual conduct; 23 2 SENATE BILL 65
(2) photograph or film a minor engaging in an obscene act, sadomasochistic 1
abuse, or sexual conduct; 2
(3) use a computer to depict or describe a minor engaging in an obscene act, 3
sadomasochistic abuse, or sexual conduct; 4
(4) knowingly promote, advertise, solicit, distribute, or possess with the 5
intent to distribute any matter, visual representation, or performance: 6
(i) that depicts a minor engaged as a subject in sadomasochistic 7
abuse or sexual conduct; or 8
(ii) in a manner that reflects the belief, or that is intended to cause 9
another to believe, that the matter, visual representation, or performance depicts a minor 10
engaged as a subject of sadomasochistic abuse or sexual conduct; or 11
(5) use a computer to knowingly compile, enter, transmit, make, print, 12
publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, 13
statement, advertisement, or minor’s name, telephone number, place of residence, physical 14
characteristics, or other descriptive or identifying information for the purpose of engaging 15
in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or 16
sexual conduct of or with a minor. 17
(b) A person who violates this section is guilty of a felony and on conviction is 18
subject to: 19
(1) for a first violation, imprisonment not exceeding 10 years or a fine not 20
exceeding $25,000 or both; and 21
(2) for each subsequent violation, imprisonment not exceeding 20 years or 22
a fine not exceeding $50,000 or both. 23
(c) (1) (i) This paragraph applies only if the minor’s identity is unknown 24
or the minor is outside the jurisdiction of the State. 25
(ii) In an action brought under this section, the State is not required 26
to identify or produce testimony from the minor who is depicted in the obscene matter or in 27
any visual representation or performance that depicts the minor engaged as a subject in 28
sadomasochistic abuse or sexual conduct. 29
(2) The trier of fact may determine whether an individual who is depicted 30
in an obscene matter, or any visual representation or performance as the subject in 31
sadomasochistic abuse or sexual conduct, was a minor by: 32
(i) observation of the matter depicting the individual; 33
SENATE BILL 65 3
(ii) oral testimony by a witness to the production of the matter, 1
representation, or performance; 2
(iii) expert medical testimony; or 3
(iv) any other method authorized by an applicable provision of law or 4
rule of evidence. 5
11–208. 6
(a) (1) In this section, “indistinguishable from an actual and identifiable child” 7
means an ordinary person would conclude that the image is of an actual and identifiable 8
minor. 9
(2) “Indistinguishable from an actual and identifiable child” includes a 10
computer–generated image that has been created, adapted, or modified to appear as an 11
actual and identifiable child. 12
(3) “Indistinguishable from an actual and identifiable child” does not 13
include images or items depicting minors that are: 14
(i) drawings; 15
(ii) cartoons; 16
(iii) sculptures; or 17
(iv) paintings. 18
(b) (1) A person may not knowingly possess and intentionally retain a film, 19
videotape, photograph, or other visual representation showing an actual child or a 20
computer–generated image that is indistinguishable from an actual and identifiable child 21
under the age of 16 years: 22
(i) engaged as a subject of sadomasochistic abuse; 23
(ii) engaged in sexual conduct; or 24
(iii) in a state of sexual excitement. 25
(2) A person may not knowingly or intentionally access and intentionally 26
view a film, videotape, photograph, or other visual representation showing an actual child 27
or a computer–generated image that is indistinguishable from an actual and identifiable 28
child under the age of 16 years: 29
(i) engaged as a subject of sadomasochistic abuse; 30
4 SENATE BILL 65
(ii) engaged in sexual conduct; or 1
(iii) in a state of sexual excitement. 2
(c) (1) Except as provided in paragraph (2) of this subsection, a person who 3
violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment 4
not exceeding 5 years or a fine not exceeding $2,500 or both. 5
(2) A person who violates this section, having previously been convicted 6
under this section, is guilty of a felony and on conviction is subject to imprisonment not 7
exceeding 10 years or a fine not exceeding $10,000 or both. 8
(d) Nothing in this section may be construed to prohibit a parent from possessing 9
visual representations of the parent’s own child in the nude unless the visual 10
representations show the child engaged: 11
(1) as a subject of sadomasochistic abuse; or 12
(2) in sexual conduct and in a state of sexual excitement. 13
(e) It is an affirmative defense to a charge of violating this section that the person 14
promptly and in good faith: 15
(1) took reasonable steps to destroy each visual representation; or 16
(2) reported the matter to a law enforcement agency. 17
11–208.2. 18
(A) (1) IN THIS SECTION , “IMAGE” MEANS ANY MATTER , VISUAL 19
REPRESENTATION , OR PERFORMA NCE, INCLUDING PHOTOGRAPH S, PICTURES, 20
ELECTRONIC PHOTOGRAP HS, COMPUTER GENERATED I MAGES, VIDEOS, 21
ELECTRONIC VIDEOS , FILM, VIDEOTAPES, OR SIMILAR VISUAL RE PRESENTATIONS 22
OR VIDEO DEPICTIONS . 23
(2) FOR THE PURPOSES OF D ETERMINING THE NUMBE R OF IMAGES 24
IN POSSESSION OF AN IND IVIDUAL IN VIOLATION OF THIS SECTION: 25
(I) EACH PHOTOGRAPH , PICTURE, ELECTRONIC PHOTOGRAP H, 26
COMPUTER GENERATED I MAGE, OR SIMILAR VISUAL RE PRESENTATION SHALL B E 27
DEEMED TO BE ONE IMAGE; AND 28
(II) EACH VIDEO, ELECTRONIC VIDEO , FILM, VIDEOTAPE, OR 29
SIMILAR VIDEO DEPICT ION SHALL BE DEEMED TO BE TWENTY IMAGES . 30
SENATE BILL 65 5
(B) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 1
THIS SUBTITLE WITH 100 OR MORE IMAGES . 2
(2) A PERSON WHO VIOLATES THIS SUBSECTION IS GUILTY OF A 3
FELONY AND ON CONVICTION IS SUBJECT TO IMPRIS ONMENT NOT EXCEEDING 10 4
YEARS. 5
(3) A SENTENCE IMPOSED UND ER THIS SUBSECTION S HALL BE 6
SEPARATE FROM AND CO NSECUTIVE TO A SENTENCE IMPOSE D FOR ANY CRIME 7
BASED ON THE ACT EST ABLISHING A VIOLATION OF § 11–207 OR § 11–208 OF THIS 8
SUBTITLE. 9
(C) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 10
THIS SUBTITLE WITH ANY IMAGE DEPICTING A MINOR OR AN INDIVIDUAL 11
INDISTINGUISHABLE FR OM AN ACTUAL MINOR Y OUNGER THAN 13 YEARS OF AGE. 12
(2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 13
FELONY AND ON CONVIC TION IS SUBJECT TO IMPRIS ONMENT NOT EXCEEDING 10 14
YEARS. 15
(3) A SENTENCE IMPOSED UND ER THIS SUBSECTION S HALL BE 16
SEPARATE FROM AND CO NSECUTIVE TO A SENTENCE IMPOSED F OR ANY CR IME 17
BASED ON THE ACTS ES TABLISHING A VIOLATI ON OF § 11–207 OR § 11–208 OF THIS 18
SUBTITLE. 19
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 20
October 1, 2024. 21