ACLU Sues Prosecutor Over ‘Sexting’ Child Porn Charges | Threat Level from Wired.com

By Kim Zetter EmailMarch 25, 2009 | 2:12:01 PMCategories: Crime

The American Civil Liberties Union is helping three teenage girls fight back against a Pennsylvania prosecutor who has threatened to charge the girls with felony child porn violations over digital photos they took of themselves.

In a federal lawsuit filed Wednesday in Pennsylvania, ACLU lawyers accuse District Attorney George P. Skumanick, Jr. (.pdf) of violating the civil rights of the girls. The lawsuit says the threat to prosecute the minors ‘is unprecedented and stands anti-child-pornography laws on their head.’

The lawsuit comes in the wake of a string of cases around the country in which teens have been arrested on child porn charges for making and distributing nude and semi-nude photos of themselves.

At issue in the case are photos seized from student cellphones last year by officials of the Tunkhannock School District in Wyoming County, Pennsylvania. The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called ‘sexting’ and has resulted in teens being arrested in a number of states under child porn production, distribution and possession charges.

The Tunkhannock case involves two photos depicting the three girls. One photo of Marissa Miller and Grace Kelly shows them two years ago at age 13 lying side by side while one talks on the phone and the other makes a peace sign with her fingers, according to the ACLU complaint. The two are photographed from the waist up and are wearing white opaque bras. A second photo shows a girl referred to in the court document as ‘Jane Doe’ photographed outside a shower with a towel wrapped around her waist. Her breasts are bared.

Last October, Tunkhannock school officials discovered that male students had been trading these and other photos, showing various states of undress, on their phones. Officials confiscated the phones and turned them over to Skumanick’s office, which began a criminal investigation.

Skumanick told an assembly of students that possessing inappropriate images of minors could be prosecuted under state child porn laws. Anyone convicted under the laws faces a possible seven year sentence and a felony conviction on their record. Under a state sex offender law, they must also register as a sex offender for 10 years and have their name and photo posted on the state’s sex offender website — the latter requirement will include juvenile offenders when the law is amended later this year.

Skumanick, who is running for re-election in May, also sent a letter to 20 students, including the three girls, who were found in possession of images. In a meeting with the students and their parents, he said he would file felony charges against the students unless they agreed to six months of probation, among other terms. He gave the parents 48 hours to agree. The parents of the three girls in the ACLU suit refused to sign.

Skumanick then threatened to charge the girls with producing child porn unless their parents agreed to the probation, and sent the teenagers to a five-week, 10-hour education program to discuss why what they did was wrong and what it means to be a girl in today’s society. The girls would also have to subject themselves to drug testing — a standard probation term in the county.

In an interview with Threat Level, Skumanick defended his actions, and said he offered the agreement in an attempt to avoid prosecution while still teaching the teens a lesson.

‘In other places around the country, they’ve simply charged [teens] and not given them an opportunity to avoid a criminal record,’ the prosecutor said. ‘Frankly, it would have been simpler to just charge them and force them to do what we wanted them to do. But then they’d end up with criminal records, and we felt this was a better approach. We were trying to do the right thing by helping them out.’

He pointed to an incident last year in Ohio to emphasize the dangers of sexting. In that case, a teenage girl killed herself over a nude photo she sent to her boyfriend, which he’d redistributed to other students, who taunted her.

‘Once these photos are out, God only know who’s going to get them,’ Skumanick said.

The ACLU of Pennsylvania is representing the three girls and their parents. In its lawsuit — filed in U.S. District Court for the Middle District of Pennsylvania — the organization charges that Skumanick violated the girls’ First Amendment rights. The lawsuit says the photos do not constitute child pornography under Pennsylvania’s criminal code since they depict no sexual activity and do not display the pubic area of the girls’ bodies.

The ACLU wants a federal judge to bar the prosecutor from charging the girls.

‘Skumanick’s threatened prosecution chills Plaintiff’s First Amendment right of expression, causing them concern about whether they may photograph their daughters, or whether the girls may allow themselves to be photographed, wearing a two-piece bathing suit,’ the ACLU wrote.

The lawsuit also claims the demand that the parents agree to place their girls in an education program violates the parents’ Fourteenth Amendment rights to direct the upbringing of their own children.

When lawyers for the parents asked for a copy of the photos that would be used to charge their children, Skumanick reportedly refused on grounds that he would be committing a crime by sharing child porn.

Skumanick still insists the images are child porn under the state law, which makes it a felony to possess or distribute images depicting a minor engaged in a sex act or the ‘lewd’ depiction of genitalia or nudity that is meant to arouse or titillate.

‘Just depicting nudity could be considered a sex act,’ he told Threat Level.

He said the photo of Miller and Kelly ‘at least constitutes open lewdness’ — which is a misdemeanor in the state — and the picture of ‘Jane Doe’ standing outside the shower ‘frankly is child porn under the statute.’ He said school administrators confiscated other pictures that showed even more nudity.

Witold Walczak, legal director for the ACLU of Pennsylvania, disagreed with Skumanick’s definition of child porn.

‘It’s not just pictures of kids that may show a little bit of flesh. It’s either got to depict sexual activity or it’s got to be some lascivious display,’ he said. ‘If you’ve just got kids standing upright outside a shower, that’s not lascivious. … If anyone needs to understand this, it’s prosecutors who have this heavy hammer they can bring down on people.’

Walczak said that ‘sexting’ is a problem that parents and educators need to address. But felony charges aren’t the answer.

‘Teens are stupid and impulsive and clueless,’ he said. ‘But that doesn’t make them criminals. Child porn charges that land you on an internet registry even if you’re a juvenile? That’s a heck of a way to teach a kid a lesson about not being careless.’

He added that beyond the problem inherent in charging teens for child porn are Fourth Amendment issues related to the school district having searched the phones of his clients and other students to uncover stored images.

He said the ACLU is looking at bringing suit against school administrators either in Tunkhannock or elsewhere to challenge the searches.

This story was updated with comments from Skumanick and the ACLU.