EXPLANATION: CAPITALS INDICATE MAT TER ADDED TO EXISTIN G LAW.
[Brackets] indicate matter deleted from existing law.
Underlining indicates amendments to bill.
Strike out indicates matter stricken from the bill by amendment or deleted from the law by
amendment.
*sb0065*
SENATE BILL 65
E1 4lr1438
(PRE–FILED)
By: Senator James Senators James, Smith, Waldstreicher, Carter, McKay, Kelly,
Charles, Sydnor, West, Muse, and Folden
Requested: November 1, 2023
Introduced and read first time: January 10, 2024
Assigned to: Judicial Proceedings
Committee Report: Favorable with amendments
Senate action: Adopted
Read second time: February 12, 2024
CHAPTER ______
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
2 SENATE BILL 65
11–207. 1
(a) A person may not: 2
(1) cause, induce, solicit, or knowingly allow a minor to engage as a subject 3
in the production of obscene matter or a visual representation or performance that depicts 4
a minor engaged as a subject in sadomasochistic abuse or sexual conduct; 5
(2) photograph or film a minor engaging in an obscene act, sadomasochistic 6
abuse, or sexual conduct; 7
(3) use a computer to depict or describe a minor engaging in an obscene act, 8
sadomasochistic abuse, or sexual conduct; 9
(4) knowingly promote, advertise, solicit, distribute, or possess with the 10
intent to distribute any matter, visual representation, or performance: 11
(i) that depicts a minor engaged as a subject in sadomasochistic 12
abuse or sexual conduct; or 13
(ii) in a manner that reflects the belief, or that is intended to cause 14
another to believe, that the matter, visual representation, or performance depicts a minor 15
engaged as a subject of sadomasochistic abuse or sexual conduct; or 16
(5) use a computer to knowingly compile, enter, transmit, make, print, 17
publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, 18
statement, advertisement, or minor’s name, telephone number, place of residence, physical 19
characteristics, or other descriptive or identifying information for the purpose of engaging 20
in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or 21
sexual conduct of or with a minor. 22
(b) A person who violates this section is guilty of a felony and on conviction is 23
subject to: 24
(1) for a first violation, imprisonment not exceeding 10 years or a fine not 25
exceeding $25,000 or both; and 26
(2) for each subsequent violation, imprisonment not exceeding 20 years or 27
a fine not exceeding $50,000 or both. 28
(c) (1) (i) This paragraph applies only if the minor’s identity is unknown 29
or the minor is outside the jurisdiction of the State. 30
(ii) In an action brought under this section, the State is not required 31
to identify or produce testimony from the minor who is depicted in the obscene matter or in 32
any visual representation or performance that depicts the minor engaged as a subject in 33
sadomasochistic abuse or sexual conduct. 34 SENATE BILL 65 3
(2) The trier of fact may determine whether an individual who is depicted 1
in an obscene matter, or any visual representation or performance as the subject in 2
sadomasochistic abuse or sexual conduct, was a minor by: 3
(i) observation of the matter depicting the individual; 4
(ii) oral testimony by a witness to the production of the matter, 5
representation, or performance; 6
(iii) expert medical testimony; or 7
(iv) any other method authorized by an applicable provision of law or 8
rule of evidence. 9
11–208. 10
(a) (1) In this section, “indistinguishable from an actual and identifiable child” 11
means an ordinary person would conclude that the image is of an actual and identifiable 12
minor. 13
(2) “Indistinguishable from an actual and identifiable child” includes a 14
computer–generated image that has been created, adapted, or modified to appear as an 15
actual and identifiable child. 16
(3) “Indistinguishable from an actual and identifiable child” does not 17
include images or items depicting minors that are: 18
(i) drawings; 19
(ii) cartoons; 20
(iii) sculptures; or 21
(iv) paintings. 22
(b) (1) A person may not knowingly possess and intentionally retain a film, 23
videotape, photograph, or other visual representation showing an actual child or a 24
computer–generated image that is indistinguishable from an actual and identifiable child 25
under the age of 16 years: 26
(i) engaged as a subject of sadomasochistic abuse; 27
(ii) engaged in sexual conduct; or 28
(iii) in a state of sexual excitement. 29
4 SENATE BILL 65
(2) A person may not knowingly or intentionally access and intentionally 1
view a film, videotape, photograph, or other visual representation showing an actual child 2
or a computer–generated image that is indistinguishable from an actual and identifiable 3
child under the age of 16 years: 4
(i) engaged as a subject of sadomasochistic abuse; 5
(ii) engaged in sexual conduct; or 6
(iii) in a state of sexual excitement. 7
(c) (1) Except as provided in paragraph (2) of this subsection, a person who 8
violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment 9
not exceeding 5 years or a fine not exceeding $2,500 or both. 10
(2) A person who violates this section, having previously been convicted 11
under this section, is guilty of a felony and on conviction is subject to imprisonment not 12
exceeding 10 years or a fine not exceeding $10,000 or both. 13
(d) Nothing in this section may be construed to prohibit a parent from possessing 14
visual representations of the parent’s own child in the nude unless the visual 15
representations show the child engaged: 16
(1) as a subject of sadomasochistic abuse; or 17
(2) in sexual conduct and in a state of sexual excitement. 18
(e) It is an affirmative defense to a charge of violating this section that the person 19
promptly and in good faith: 20
(1) took reasonable steps to destroy each visual representation; or 21
(2) reported the matter to a law enforcement agency. 22
11–208.2. 23
(A) (1) IN THIS SECTION , “IMAGE” MEANS ANY MATTER , VISUAL 24
REPRESENTATION , OR PERFORMANCE , INCLUDING PHOTOGRAPH S, PICTURES, 25
ELECTRONIC PHOTOGRAP HS, COMPUTER GENERATED I MAGES, VIDEOS, 26
ELECTRONIC VIDEOS , FILM, VIDEOTAPES, OR SIMILAR VISUAL RE PRESENTATIONS 27
OR VIDEO DEPICTIONS. 28
(2) FOR THE PURPOSES OF D ETERMINING THE NUMBE R OF IMAGES 29
IN POSSESSION OF AN INDIVIDUAL IN VIOLAT ION OF THIS SECTION : 30
SENATE BILL 65 5
(I) EACH PHOTOGRAPH , PICTURE, ELECTRONIC PHOTOGRAP H, 1
COMPUTER GENERATED I MAGE, OR SIMILAR VISUAL RE PRESENTATION SHALL B E 2
DEEMED TO BE ONE IMA GE; AND 3
(II) EACH VIDEO, ELECTRONIC VIDEO , FILM, VIDEOTAPE, OR 4
SIMILAR VIDEO DEPICT ION SHALL BE DEEMED TO BE TWENTY IMAGES . 5
(B) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 6
THIS SUBTITLE WITH 100 OR MORE IMAGES . 7
(2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 8
FELONY AND ON CONVIC TION IS SUBJECT TO I MPRISONMENT NOT EXCE EDING 10 9
YEARS. 10
(3) A SENTENCE IMPOSED UND ER THIS SUBSECTION SHALL MAY BE 11
SEPARATE FROM AND CO NSECUTIVE TO OR CONCURRENT WITH A SENTENCE 12
IMPOSED FOR ANY OTHER CRIME BASED ON THE A CT ESTABLISHING A VI OLATION 13
OF § 11–207 OR § 11–208 OF THIS SUBTITLE. 14
(C) (1) A PERSON MAY NOT VIOLA TE § 11–207(A)(4) OR § 11–208(B)(1) OF 15
THIS SUBTITLE WITH A NY IMAGE DEPICTING A MINOR OR AN INDIVIDUAL 16
INDISTINGUISHABLE FR OM AN ACTUAL MINOR Y OUNGER THAN 13 YEARS OF AGE. 17
(2) A PERSON WHO VIOLATES THIS SUBSECTION IS G UILTY OF A 18
FELONY AND ON CONVIC TION IS SUBJECT TO I MPRISONMENT NOT EXCE EDING 10 19
YEARS. 20
(3) A SENTENCE IMPOSED UND ER THIS SUBSECTION SHALL MAY BE 21
SEPARATE FROM AND CO NSECUTIVE TO OR CONCURRENT WITH A SENTENCE 22
IMPOSED FOR ANY OTHER CRIME BASED ON THE A CTS ESTABLISHING A V IOLATION 23
OF § 11–207 OR § 11–208 OF THIS SUBTITLE. 24
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 25
October 1, 2024. 26