‘Sexting’ prosecution of three teens in Pennsylvania goes way over the line

June 28th, 2018

By Dean I Weitzman, Esq.


What do you get when you mix an overzealous county prosecutor, cellphone pranks and a group of teen-aged girls and boys together?

Well, in Wyoming County, Pa., in the Tunkhannock School District, you apparently get a huge controversy that brings in the American Civil Liberties Union of Pennsylvania to take on a county prosecutor who wants to try to set an example and prosecute the teens on trumped up child pornography charges involving “sexting.”

What “crimes” did the teens commit?  Three of the girls were included in two scantily-clad photos that were transmitted to others using cellphone cameras, according to the ACLU.  One of the photos shows two of the girls at age 12 from the waist up wearing white training bras, while the second photo shows a 16-year-old girl “standing outside a shower with a bath towel wrapped around her body beneath her breasts,” according to the ACLU.  “Neither of the two photos depicts sexual activity or reveals anything below the waist.”

1 27 10 cell phone texting photo iStock 000006947131XSmall1

A group of unidentified teens communicate with others using cellphones. ©

“Sexting” is the term given to sending nude or semi-nude photos of oneself to others via cellphones. The phenomenon took hold especially among teens due to the widespread use of cellphones that include built-in cameras.

The school district, in northeastern Pennsylvania near Scranton and Wilkes-Barre, learned of the photos in October 2008 after confiscating cell phones from several students. The pictures were found on the phones and then-district attorney,  George Skumanick Jr., was called in.  Skumanick, who labeled the photos “provocative,” began a criminal investigation and later told the parents of about 19 school district students that he would prosecute the students on felony charges due to their conduct if they didn’t agree to probation and undergoing a counseling program.  The counseling program was to include lessons to help the girls  learn how their actions were wrong, what it means to be a girl in today’s society and about non-traditional societal and job roles.  The parents of 16 of the teens allowed their children to go through the counseling program to avoid criminal charges, while the parents of three of the girls decided to fight the case on the grounds that the prosecutor was simply wrong in his handling of the matter.

One problem with Skumanick’s approach, according to the ACLU, was that it was aimed only at the parents of the students whose cell phones contained the photos and of the girls in the pictures.  The former boyfriend of one of the girls, the one whose breasts were visible in a photo, was the person who transmitted that photo, but his parents were not sent one of Skumanick’s letters, according to the ACLU.  Skumanick lost a re-election campaign last November and was replaced earlier this month by a newly-elected district attorney, Jeffrey Mitchell, who is continuing to prosecute the case.

Why does any of this make a difference?

Because for a stupid teen-aged prank, the teens involved are being threatened with serious felony child pornography charges which carry a possible 10-year prison sentence.  A conviction like that for a childhood prank would likely haunt them for life, in addition to requiring mandatory registration on government-kept lists of child sex offenders.

The ACLU took this case on last year and is still fighting it.

Two weeks ago, the case, Miller, et al. v. Skumanick, continued its journey through the legal system when a three-judge panel in the U.S. Court of Appeals for the 3rd Circuit here in Philadelphia heard oral arguments on appeal after a U.S. District Court ruling that favored the ACLU’s position  last year.   According to The Legal Intelligencer, “all three judges seemed skeptical of the prosecutor’s claim that child pornography laws are violated when a teen transmits a nude image of herself.”

And that’s really the point here. Were these goofy teens doing some of the things that goofy, immature teens do? Yes.

Should these incidents be considered cases of true child pornography that we need to combat with every powerful legal weapon we have at our disposal? No.

Stupid choices by kids who didn’t think of the consequences of their actions should not be the basis of federal charges in this case.

“I don’t know of anything that says a district attorney’s office is allowed to, in effect, play the role of teacher,” said Appeals Court Judge Thomas L. Ambro, at the hearing two weeks ago, according to The Legal Intelligencer. The three judge panel now is considering the case and can issue a decision at any time. There is no set time frame for their decision, so the families of the teens now wait as long as necessary for the case to move forward.

This is a prosecution run amok and a case that should be dropped.

The teens who “sexted” did something stupid, but in this case it certainly wasn’t criminal.

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