Federal Judge Sides with Teen Girls in Pa. Cell-phone ‘Sexting’ Case

April 1, 2009 - 6:04 PM
A federal district judge in Allentown, Pa., has temporarily barred the district attorney of Wyoming County, Pa., from prosecuting three teen girls on felony child pornography charges for circulating two semi-nude photos of themselves to their classmates via cell phones two years ago.
(CNSNews.com) – A federal district judge in Allentown, Pa., has temporarily barred the district attorney of Wyoming County, Pa., from prosecuting three teen girls on felony child pornography charges for circulating two semi-nude photos of themselves to their classmates via cell phones two years ago.
 
In one of the pictures, two 13-year-old girls posed together wearing bras, according to court documents. The other photo depicted a teen girl who was naked from the waist up. 

The American Civil Liberties Union, representing the teens' parents, had filed suit against Wyoming County District Attorney George Skumanick Jr, who had said he would pursue felony charges against the girls unless they agreed to participate in a five-week after-school sexual-harassment program and probation. 

“Here you have a prosecutor threatening children with very serious felony charges when he has no basis in law to do so,” said Vic Walczak, legal director for ACLU Pennsylvania and the plaintiffs’ attorney in the case.
 
Walczak and the ACLU also claim that the images are protected First Amendment speech – and that the girls didn't consent to having their pictures distributed.
 
“The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment,” he added.
 
The federal judge agreed with the ACLU.
 
"While the court emphasizes that its view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts," U.S. District Judge James M. Munley wrote Monday.
 
"Even if they were such depictions, the plaintiffs’ argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one," Munley said.
 
But Patrick Trueman, a former Justice Department obscenity prosecutor who now serves as special counsel to the Alliance Defense Fund, told CNSNews.com that photos with even partially nude children in them constitute child pornography.
 
Trueman said he is concerned about the precedent that would be set if a court ruled that teens have a constitutional right to produce and distribute nude pictures of themselves.
 
“There’s a lot of child pornography of this genre floating around the Internet,” Trueman said. “If you want to increase it, then exonerate the kids. But if you want to reduce child pornography, you have to enforce the law.”
 
Federal law defines child pornography as “any visual depiction” of “sexually explicit conduct” involving a minor, and defines “sexually explicit conduct” to include not only various sexual acts but also the “lascivious exhibition of the genitals or pubic area of any person.”
 
Trueman, meanwhile, pointed out that the courts have held that child pornography is never protected by the First Amendment.
 
Lascivious photos?
 
The photos at the center of the case are an example of an increasingly popular nationwide trend known as “sexting” – where teens and others take nude and semi-nude pictures of themselves and send the photos to friends through cell phone text-messages or by e-mail.
 
According to court documents, the Pennsylvania photos involve three girls in the Tunnahannock school district in central Pennsylvania.
 
In one photo, the two girls are pictured from the waist up, lying side by side, in training bras. One girl is talking on a telephone and the other is making a peace sign. The photo is believed to be two years old, when the girls pictured were 13.
 
The ACLU’s Walczak, meanwhile, said that the mother of one of the girls found the photograph humorous.
 
“The mom saw the picture when it was taken a couple of years ago and laughed,” Walczak said. “She said [the girls] were having a slumber party and were being goofy and that’s the kind of picture it is.”
 
The second photo depicts a 16-year-old girl as she exits a shower. According to the suit, the girl has a towel tied around her waist and is naked from the waist up. 

The photos were found on boys’ cell phones after the school confiscated five student phones last October, according to court documents surrounding the lawsuit. 

In November, prosecutor Skumanick told local reporters that any students who create or possess inappropriate images of minors may be prosecuted for “sexual abuse of children” or “criminal use of a communication facility” -- both of which are felonies that could result in a seven-year prison sentence. 

Walczak, meanwhile, said that the ACLU does not condone the teens’ behavior, but it instead sees it as an example of teenage foolishness.
 
“With these kids, there’s no criminal intent,” he said. “It’s stupidity or impulsiveness or carelessness, but to threaten very serious felony charges that plainly do not apply in many of these cases is an abuse of power by the district attorney.”
 
Trueman, meanwhile, pointed out that the teens’ punishment would be less harsh if they were tried in juvenile court.

But whether as juveniles or as adults, he said, the teens must be held accountable in order for the court to show that child pornography is a serious offense.
 
Similar situations have been reported in nearly a dozen states already, and legislators are struggling to apply pre-existing child pornography laws in the Internet era.

According to a report titled “Sex and Tech” released last month by the National Campaign to Prevent Teen and Unplanned Pregnancy, 20 percent of teens say they have sent or posted nude or seminude pictures or videos of themselves. 

Last year, an 18-year-old female in Cincinnati committed suicide after a nude photo she text-messaged to her boyfriend was circulated to hundreds of students at seven area high schools.