Criminal Law (GCR) — Title 11. Indecency and Obscenity

sale of a product;

offering of a service; or

exhibition of entertainment.

flagellation or torture committed by or inflicted on an individual who is:

binding, fettering, or otherwise physically restraining an individual who is:

human masturbation;

sexual intercourse;

whether alone or with another individual or animal, any touching of or contact with:

lascivious exhibition of the genitals or pubic area of any person.

the condition of the human genitals when in a state of sexual stimulation;

the condition of the human female breasts when in a state of sexual stimulation; or

the sensual experiences of individuals engaging in or witnessing sexual conduct or nudity.

a picture, photograph, drawing, sculpture, motion picture, film, or other visual representation or image of an individual or portion of the human body that depicts sadomasochistic abuse, sexual conduct, or sexual excitement;

a book, magazine, paperback, pamphlet, or other written or printed matter however reproduced, that contains:

a sound recording that contains:

depicts or reveals:

includes obscene material or explicit verbal descriptions or narrative accounts of sexual conduct.

exhibit to a minor without the presence of the minor’s parent or guardian a motion picture show or other presentation described in subsection (a) of this section;

sell to a minor an admission ticket or other means to gain entrance to a motion picture show or other presentation described in subsection (a) of this section; or

admit a minor without the presence of the minor’s parent or guardian to premises where a motion picture show or other presentation described in subsection (a) of this section is exhibited.

shall require each individual upon entering the premises to display a driver’s license or an identification card that substantiates the individual’s age; and

may not knowingly allow a minor to remain on the premises.

depicts sadomasochistic abuse;

depicts sexual conduct as defined by § 11–101(d)(1), (2), or (3) of this subtitle;

depicts sexual excitement; or

contains a verbal description or narrative account of sadomasochistic abuse, sexual conduct, or sexual excitement.

at least 2 years old; and

more than 4 years younger than the person.

A person who violates subsection (b) of this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $1,000 or both.

A person who violates subsection (c) of this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both.

a book, magazine, newspaper, or other printed or written material;

a picture, drawing, photograph, motion picture, or other pictorial representation;

a statue or other figure;

a recording, transcription, or mechanical, chemical, or electrical reproduction; or

any other article, equipment, machine, or material.

knowingly send or cause to be sent any obscene matter into the State for sale or distribution;

knowingly bring or cause to be brought any obscene matter into the State for sale or distribution;

in the State prepare, publish, print, exhibit, distribute, or offer to distribute any obscene matter; or

possess any obscene matter in the State with the intent to distribute, offer to distribute, or exhibit.

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

The State’s Attorney may maintain an action for an injunction in the circuit court against a person to prevent the sale, further sale, distribution, further distribution, acquisition, publication, or possession within the State of any book, magazine, pamphlet, newspaper, story paper, writing paper, picture, card, drawing, photograph, motion picture film or showing, or any article, item, or instrument the use of which is obscene.

The circuit court may enjoin the sale or distribution of a book, magazine, motion picture film or showing, or other publication or item that is prohibited under this section from sale or distribution.

After being served a summons and complaint in an action by the State’s Attorney under this section, a person who sells, distributes, or acquires the enjoined material is chargeable with knowledge of the contents of the materials described in this section.

The defendant is entitled to a trial of the issues within 1 day after joinder of issue.

The court shall render a decision within 2 days after the conclusion of the trial.

If an order or judgment is entered in favor of the State’s Attorney, the final order or judgment shall contain provisions:

In an action brought under this section, the State’s Attorney is not:

In this section the following words have the meanings indicated.

“Distribute” includes to rent.

“Illicit sex” means:

“Item” means a:

“Obscene” means:

“Partially nude figure” means a figure with:

A person may not willfully or knowingly display or exhibit to a minor an item:

A person may not willfully or knowingly engage in the business of displaying, exhibiting, selling, showing, advertising for sale, or distributing to a minor an item:

If a newsstand or other place of business is frequented by minors, the owner, operator, franchisee, manager, or an employee with managerial responsibility may not openly and knowingly display at the place of business an item whose sale, display, exhibition, showing, or advertising is prohibited by paragraph (2) of this subsection.

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

A person may not prepare, give, direct, present, perform or participate in an obscene performance, exhibition, drama, play, show, dancing exhibition, tableau, or other entertainment in which individuals perform or participate live in an obscene manner in the presence of individuals who have paid any kind of consideration to observe the exhibition or performance.

An owner, lessee, or manager of a building, garden, place, room, structure, or theater may not knowingly allow or assent to the use of the premises for the types of exhibitions prohibited by paragraph (1) of this subsection.

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

write or create advertising or otherwise promote the sale or distribution of matter the person represents or holds out to be obscene; or

solicit the publication of advertising that promotes the sale or distribution of matter the person represents or holds out to be obscene.

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

A person may not knowingly require a purchaser or consignee to receive obscene matter as a condition to a sale, allocation, consignment, or delivery for resale of a paper, magazine, book, periodical, publication, or other merchandise.

In response to a person’s return of or failure to accept obscene matter, a person may not knowingly:

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

cause, induce, solicit, or knowingly allow a minor to engage as a subject in the production of obscene matter or a visual representation or performance that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct;

photograph or film a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;

use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;

knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:

use a computer to knowingly 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 the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.

for a first violation, imprisonment not exceeding 10 years or a fine not exceeding $25,000 or both; and

for each subsequent violation, imprisonment not exceeding 20 years or a fine not exceeding $50,000 or both.

The trier of fact may determine whether an individual who is depicted in an obscene matter, or any visual representation or performance as the subject in sadomasochistic abuse or sexual conduct, was a minor by:

In this section, “indistinguishable from an actual and identifiable child” means an ordinary person would conclude that the image is of an actual and identifiable minor.

“Indistinguishable from an actual and identifiable child” includes a computer–generated image that has been created, adapted, or modified to appear as an actual and identifiable child.

“Indistinguishable from an actual and identifiable child” does not include images or items depicting minors that are:

A person may not knowingly possess and intentionally retain a film, videotape, photograph, or other visual representation showing an actual child or a computer–generated image that is indistinguishable from an actual and identifiable child under the age of 16 years:

A person may not knowingly or intentionally access and intentionally view a film, videotape, photograph, or other visual representation showing an actual child or a computer–generated image that is indistinguishable from an actual and identifiable child under the age of 16 years:

Except as provided in paragraph (2) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $2,500 or both.

A person who violates this section, having previously been convicted under this section, is guilty of a felony and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $10,000 or both.

as a subject of sadomasochistic abuse; or

in sexual conduct and in a state of sexual excitement.

took reasonable steps to destroy each visual representation; or

reported the matter to a law enforcement agency.

In this section the following words have the meanings indicated.

“Child pornography” means any electronic image or visual depiction that is unlawful under § 11-207 or § 11-208 of this subtitle.

“Controlled or owned”, with respect to a server or other storage device, means to be entirely owned by an interactive computer service provider or to be subject to exclusive management by an interactive computer service provider by agreement or otherwise.

“Interactive computer service provider” means an entity that provides a service that provides or enables computer access via the Internet by multiple users to a computer server or similar device used for the storage of graphics, video, or images.

contact the interactive computer service provider that controls or owns the server or other storage device where the item of alleged child pornography is located;

inform the interactive computer service provider of the provisions of this section; and

request that the interactive computer service provider voluntarily comply with this section and remove the item of alleged child pornography from its server or other storage device, if practicable, within 5 business days.

If the interactive computer service provider does not voluntarily remove the item of alleged child pornography within the time period established in subsection (b) of this section, the investigative or law enforcement officer shall apply for a court order of authorization to remove the item of alleged child pornography in accordance with Title 10, Subtitle 4 of the Courts Article.

The application for a court order shall:

The investigative or law enforcement officer shall serve the application on the interactive computer service provider.

The interactive computer service provider has the right to request a hearing before the court imposes any penalty under this section.

an item of child pornography resides on a server or other storage device controlled or owned by the interactive computer service provider or is accessible to persons located in the State;

there is probable cause to believe that the item violates § 11-207 or § 11-208 of this subtitle;

the interactive computer service provider shall remove the item residing on a server or other storage device controlled or owned by the interactive computer service provider within 5 business days after receiving the order, if practicable;

failure of the interactive computer service provider to comply with the court’s order is a violation of this section;

the removal of the item on the server or other storage device controlled or owned by the interactive computer service provider may not unreasonably interfere with a request by a law enforcement agency to preserve records or other evidence;

the process of removal shall be conducted in a manner that prevents the removal of images, information, or data not otherwise subject to removal under this section; and

provides the interactive computer service provider notice and opportunity for a hearing before the court imposes any penalty under this section.

The Office of the State’s Attorney shall serve the court’s order on the interactive computer service provider.

The order shall be accompanied by:

An interactive computer service provider may petition the court for relief for cause from an order issued under subsection (d) of this section.

The petition may be based on considerations of:

An interactive computer service provider who knowingly and willfully fails to report the information required under paragraph (1) of this subsection is guilty of a misdemeanor and on conviction is subject to:

for a first violation, a fine not exceeding $5,000;

for a second violation, a fine not exceeding $20,000; and

for each subsequent violation, a fine not exceeding $30,000.

the interactive computer service provider provides access to the Internet;

any communication from the interactive computer service provider traveled; or

the communication from the interactive computer service provider originated or terminated.

This section does not impose a duty on an interactive computer service provider actively to monitor its service or affirmatively to seek evidence of an item of child pornography on its service.

This section does not apply to the interactive computer service provider’s transmission or routing of, or intermediate temporary storage or caching of, an image, information, or data that otherwise is subject to this section.

In this section, “image” means any matter, visual representation, or performance, including photographs, pictures, electronic photographs, computer–generated images, videos, electronic videos, film, videotapes, or similar visual representations or video depictions.

For the purpose of determining the number of images in possession of an individual in violation of this section:

A person may not violate § 11–207(a)(4) or § 11–208(b)(1) of this subtitle with 100 or more images.

A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not exceeding 10 years.

A sentence imposed under this subsection may be separate from and consecutive to or concurrent with a sentence imposed for any other crime based on the act establishing a violation of § 11–207 or § 11–208 of this subtitle.

A person may not violate § 11–207(a)(4) or § 11–208(b)(1) or (2) of this subtitle with any image depicting a minor or an individual indistinguishable from an actual and identifiable child under the age of 13 years.

A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not exceeding 10 years.

A sentence imposed under this subsection may be separate from and consecutive to or concurrent with a sentence imposed for any other crime based on the act establishing a violation of § 11–207 or § 11–208 of this subtitle.

for a first violation, imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both; and

for each subsequent violation, imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

A person having a bona fide scientific, educational, governmental, artistic, news, or other similar justification for possessing or distributing prohibited matter is not subject to the prohibitions and penalties imposed by this subtitle.

A distribution made in accordance with a bona fide scientific, educational, governmental, artistic, news, or other similar justification is not subject to the prohibitions and penalties imposed by this subtitle.

engage in prostitution or assignation by any means; or

occupy a building, structure, or conveyance for prostitution or assignation.

Subject to paragraph (2) of this subsection, in a prosecution under this section, it is an affirmative defense of duress if the defendant committed the act as a result of being a victim of an act of another in violation of Title 3, Subtitle 11 of this article or the prohibition against human trafficking under federal law.

A defendant may not assert the affirmative defense provided in paragraph (1) of this subsection unless the defendant notifies the State’s Attorney of the defendant’s intention to assert the defense at least 10 days prior to trial.

promote a crime under this subtitle;

profit from a crime under this subtitle; or

conceal or disguise the nature, location, source, ownership, or control of money or proceeds of a crime under this subtitle.

persuade or entice or aid in the persuasion or enticement of an individual under the age of 16 years from the individual’s home or from the custody of the individual’s parent or guardian; and

knowingly secrete or harbor or aid in the secreting or harboring of the individual who has been persuaded or enticed in the manner described in item (1) of this subsection.

Subject to paragraph (2) of this subsection, in a prosecution under this section, it is an affirmative defense of duress if the defendant committed the act as a result of being a victim of an act of another in violation of Title 3, Subtitle 11 of this article or the prohibition against human trafficking under federal law.

A defendant may not assert the affirmative defense provided in paragraph (1) of this subsection unless the defendant notifies the State’s Attorney of the defendant’s intention to assert the defense at least 10 days prior to trial.

allow a building, structure, or conveyance owned or under the person’s control to be used for prostitution or assignation;

allow or agree to allow a person into a building, structure, or conveyance for prostitution or assignation; or

keep, set up, maintain, or operate a building, structure, or conveyance for prostitution or assignation.

Subject to paragraph (2) of this subsection, in a prosecution under this section, it is an affirmative defense of duress if the defendant committed the act as a result of being a victim of an act of another in violation of Title 3, Subtitle 11 of this article or the prohibition against human trafficking under federal law.

A defendant may not assert the affirmative defense provided in paragraph (1) of this subsection unless the defendant notifies the State’s Attorney of the defendant’s intention to assert the defense at least 10 days prior to trial.