A federal judge on March 30 temporarily blocked a prosecutor from filing child pornography charges against three northeastern Pennsylvania teenagers who appeared in racy photos that turned up on classmates’ cell phones.
The case is one of the first to address how prosecutors should handle the growing phenomenon of "sexting," in which teens send each other sexually suggestive photos of themselves or others, usually via cell phone. The nationwide problem has confounded parents, school administrators, and law-enforcement officials.
Prosecutors in a number of states, including Pennsylvania, Connecticut, North Dakota, Ohio, Utah, Vermont, Virginia, and Wisconsin, have tried to put a stop to it by charging teens who send and receive the pictures. But many parents and other observers say filing child pornography charges should be reserved for real sex offenders, not teenagers who might have used poor judgment but meant nothing malicious. (See "Porn charges for sexting stir debate.")
In the Pennsylvania case, U.S. District Judge James Munley ruled against Wyoming County District Attorney George Skumanick Jr., who has threatened to pursue felony charges against the girls unless they agree to participate in a five-week after-school program.
One picture showed two of the girls in their bras. The second photo showed another girl just out of the shower and topless, with a towel wrapped around her waist.
"We are grateful the judge recognized that prosecuting our clients for non-sexually explicit photographs raises serious constitutional questions," Witold Walczack, legal director of the American Civil Liberties Union of Pennsylvania, said in a statement.
"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result" when teens send sexually suggestive photos of themselves and others to one another, he said.
Skumanick, who has said he can prosecute the teens as "accomplices" in the production of child pornography, said he would consider an appeal.
The ruling "sets a dangerous precedent by allowing people to commit crimes and then seek refuge from state arrest in the federal courts," he said.
The photos surfaced in October, when officials at Tunkhannock Area High School confiscated five cell phones and found that boys had been trading photos of scantily clad, semi-nude, or nude teenage girls. The students with the cell phones ranged in age from 11 to 17.
Skumanick met with about 20 students and their parents last month and offered them a deal in which the youths wouldn’t be prosecuted if they took a class on sexual harassment, sexual violence, and gender roles. Seventeen of the students accepted the offer, but three balked and sued Skumanick last week.
The suit, filed by the ACLU, said the teens didn’t consent to having the picture distributed and that the images are not pornographic. The ACLU said Skumanick’s threat to prosecute is "retaliation" for the students’ refusal to participate in the class.
Munley’s decision to grant the teens a temporary restraining order prevents Skumanick from filing charges while the lawsuit proceeds.
The girls "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. Even if they were such depictions, the plaintiffs’ argument that [they] were not involved in disseminating the images is also a reasonable one," Munley wrote.
Under Pennsylvania’s child pornography law, it’s a felony to possess or disseminate photos of a minor engaged in sexual activity, "lewd exhibition of the genitals," or nudity that is meant to titillate.
The judge said he "offers no final conclusion on the merits of plaintiffs’ position" and scheduled a hearing on the case for June 2.
U.S. District Court for the Middle of Pennsylvania
American Civil Liberties Union of Pennsylvania