Constitutional Law
Fed’l Judge in Pa. Backs ACLU, Bars DA from Charging Teens for ‘Sexting’
Posted Mar 30, 2009 6:30 PM CST
By Martha Neil
Siding with the American Civil Liberties Union, a federal judge in Pennsylvania has barred the Wyoming County District Attorney from pursuing threatened felony charges against teenage girls he has accused of sending explicit photographs over their cell phones.
The controversial case over so-called sexting was filed by the ACLU in federal court in Scranton, along with the parents of three girls. They contend that photographs of the girls are not pornographic and are protected under the First Amendment. Today U.S. District Judge James Munley issued a temporary injunction barring DA George Skumanick Jr. from pursuing criminal charges against the three teens, reports the Times-Tribune in a breaking story.
One of the photos at issue showed girls, from the waist up, wearing bras. The third shows the a teen girl topless, wearing a towel from the waist down, after stepping out of the shower, the Associated Press reported.
Skumanick, who says he is looking out for the teens' best interests and has done nothing wrong, offered them a chance to participate in an after-school education program on pornography and sexual violence in exchange for dropping potential criminal cases. However, the teens, their parents and the ACLU contend that the teens' First and Fourth Amendment rights are violated by the threatened prosecution.
Earlier coverage:
ABAJournal.com: "‘Sexting’ Cases Put Pa. Prosecutor on ACLU’s Litigation List"
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Comments
B. McLeod
Mar 30, 2009 7:04 PM CST
Doh! That constitution thingy just keeps getting in his way.
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P. Bryson
Mar 31, 2009 6:41 AM CST
I’m not sure the First Amendment is going to take these girls all the way. There will be a lot of concern to not create a rule that will leave a loophole for child porn. I imagine the case will be finally resolved on parsing the statute under which the girls are charged to find that they didn’t violate it, not on Constitutional grounds.
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I. BURNS
Mar 31, 2009 8:58 AM CST
I wonder what the ramifications would be if the girls were prosecuted>? Seems like the Cell phone companies and phone manufactures might have a stake in the turnout, .
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airwaves
Mar 31, 2009 9:51 AM CST
The cell phone could be an “accessory” (to sexting).
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Sam
Mar 31, 2009 10:34 AM CST
Child porn law was never meant to be used to go after the victims / subjects of the law. This DA is an overzealous buffoon. Scary, but I’m with the ACLU on this one.
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What If? in Ohio
Mar 31, 2009 11:22 AM CST
AT LAST! A judge with some common sense. Ohio’s ACLU needs to get involved also.
What if: a guy has the appearance of Michelangelo’s David and takes his own picture posing as David. His girlfriend sends the photo by cell to her sister, age 17.98 years, who is a college arts major?
What if: a girl is a descendant of the model(s) used in Edward Weston’s photography? (visit at: www.edward-weston.com), e.g., Breast 1920, Nude Mexico 1923, Nude 1925, Torso 1925, Dancer 1927, Nude 1936, Nude 1939, Nude Floating 1939, available on the web at www.nationalliteraryreview.org/winter_2006-2007/Photography.htm; and she sends her poses to a minor.
I believe, but am uncertain, that an Ohio prosecutor has claimed that a cell phone is a criminal tool when a person uses it to send a “nude” image to a minor.
I still maintain that if we use Jonathan Swift’s “A Modest Proposal” and convert all babies to Soylent Green tablets, we will eliminate these teeny felons and at least temporarily solve the hunger crisis.
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X
Mar 31, 2009 4:51 PM CST
What? You mean sex offender laws are too vague and far-reaching? No! You don’t say!
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Jtiberius
Apr 3, 2009 7:18 AM CST
The DA was interviewed on the Today show a week or so ago. He is a complete baffoon and misses the point. He is trying to make the victims the villains because they are not going along with some idiotic education program he put together for his own self-glorification.
This is just kids being kids (albeit stupid). Luckily in PA we vote on our DA’s and this bozzo will soon be gone. Just watch out when you are driving through the backhills of PA or you will be answering to this guy!
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SgtDad
Apr 3, 2009 9:00 AM CST
It’s a sad day for Wyoming Cty. The DA is less mature than these girls. Several questions are begged:
1. How is justice served by this prosecution?
2. Doesn’t PA law require DA’s to be grown-ups?
3. Doesn’t he have real crooks to prosecute?
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Kalifornia Arnold
Apr 3, 2009 9:24 AM CST
This DA has had it rough since the Inquisition shut down.
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PatToo
Apr 3, 2009 10:01 AM CST
I’m glad to see the girls, who are the victims, as Jtiberius points out, are protected from this DA. I hope; however, that the DA will not be deterred from prosecuting the boys who received these messages to the fullest extent of the law, and that these boys get the maximum sentence for possessing child pornography. There is no excuse for the boys’ behavior, which oppresses all women, not just the girls who are the most obvious victims in this case.
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Ashtar94
Apr 3, 2009 10:50 AM CST
PatToo, if a teenaged boy sends a photograph of himself, dressed only in his underwear, to a female classmate, should the female classmate “get the maximum sentence for possessing child pornography” too?
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Daniel Reitman
Apr 3, 2009 10:52 AM CST
The sexting cases (we have a similar case pending in Oregon) have shown that child pornography law may not be appropriate in all cases. Among the possible reforms may be:
1. By analogy to “Romeo and Juliet” laws in many states, attaching a 3 year age difference defense, applicable to the individual defendant. This defense should not, however, be made available to an adult who comes into possession of the material with self-gratifying intent.
2. Requiring that sexting cases involving teens under 18 be treated in the juvenile system, without option to try as an adult unless a pattern of conduct with self-gratifying intent or violent behavior is present.
On the procedural side without reading the opinion, I unfortunately have concerns whether the court was acting within its jurisdiction.
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Bill C
Apr 3, 2009 11:02 AM CST
Way to go, PatToo (#11). Paint the girls as “victims” but suggest that the boys are women oppressors and criminals. Unless there was an element of coercion involved, the girls are as “responsible” (if that’s your view) for voluntarily taking the photos as the boys are for voluntarily receiving them. If the taking/sending of pictures is protected by the Constitution, isn’t the receiving/viewing of them? Nice assumption, also, that boys were on the receiving end of the texts. Please get real.
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Oh my
Apr 3, 2009 11:31 AM CST
I hope PatToo is joking (about prosecuting the boys who received the messages) or is a troll fishing for angry responses. I’m not going to bite any further than to the extent which I already have.
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K.
Apr 3, 2009 11:32 AM CST
Hey, PatToo, if a teenager flashed you, could you prosecute yourself for possessing child porn images in your brain?
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Jeremy
Apr 3, 2009 12:06 PM CST
I actually am on the DA’s side. He is employed to uphold the law, regardless of the person. George Washington made it very clear that we are a respecter of laws in America, not of men.
I am unsure of the extent of child porn laws in PA, but if they are similar to other states it seems these girls are rightfully being prosecuted. Until the legislature changes the laws (which may or may not be unjustified) the DA is only doing his job.
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Chris
Apr 3, 2009 12:35 PM CST
Jeremy,
DA’s don’t have to prosecute every technical violation of the law. There supposed to use their descretion and bring the cases that will serve justice. In this case reasonable minds can disagree about the validity of the child porn laws as written. Personally I think that one should have to be 18 to even be charged with possessing child porn. The laws were designed to protect children from adult sexual predators not other children or teenagers, who might not have the most common sense to begin with.
What we might need is a law that punishes the distribution of these “sexting” pictures. The child porn law is too severe. It should be a juvenile offense. Adults whose age would make sexual contact with the subject of the pictures statutory rape or rape can be charged under the child porn law.
Just my thoughts. This is a case of the law needing to catch up with the technology.
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Andy the Lawyer
Apr 3, 2009 12:48 PM CST
Why not just lock up the self-sexters in the stocks in the town square for a day? Fear of this sort of public humiliation worked to control bad behavior for our Puritan ancestors, and there’s nothing teens fear more than public humiliation.
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Tony
Apr 3, 2009 4:16 PM CST
I’m dying to hear the explanation by the DA of how turning a teen age girl into a sex offender subject to registration for the rest of her life over some childish pictures of HERSELF, translates to looking out for her best interests.
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Jackson, Esq.
Apr 4, 2009 12:23 AM CST
The problem is that, once again, the law does not keep pace with the technology. The girls do not need or deserve to be prosecuted. We’ve all done some boneheaded things when we were teenagers (at least I have!). This is not a child porn case. This is an overzealous prosecutor trying to make a name for himself. The prosecutor is, as noted, supposed to use his discretion in what cases to bring. To squander resources on this seems trivial. Is he the only prosecutor with an excess budget?
As for prosecuting the boys, what would the outcome be if the girls sent the photo to the wrong phone accidentially? I don’t relish the thought that my kid (or I for that mater) could receive one of these photos - unrequested - and face a prosecution. Now, If I forward them on, that’s a different story. But for simply receiving a photo - that’s incorrect.
The girls need to understand the ramifications of their action - but not in a court of law.
The older I get, the more I agree with the ACLU. Scary….
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Kory Nelson
Apr 6, 2009 11:20 AM CST
More education is greatly needed on the parts of parents, law enforcement, school officials, judges and prosecutors about this problem. I’ve written a blog on this topic I would suggest everyone should read:
Sexting: Pandora’s box of modern technology
http://denver.yourhub.com/Parker/Blogs/Technology-The-Web/Blog~589923.aspx
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