Sexting update: Court rules teen girl can’t be charged with a felony

By Dean I Weitzman, Esq. on March 25th, 2010

A U.S. Court of Appeals got it right recently when it ruled that a teenaged girl whose semi-nude photo was transmitted via a cell phone text message cannot be charged with felony child abuse charges.

That was the correct decision in this so-called “sexting” case that got big headlines and showed just how ridiculous the legal system can get when it is fueled by ideologies rather than by reality.

We last wrote about this case in January, when the second in a line of overzealous Wyoming County, Pa., prosecutors was continuing to pursue felony child abuse charges in connection with the cell phone photo.

The photo was discovered on a cell phone when several phones were confiscated in 2008 by officials in the Tunkhannock School District, there the girl was a student. Interestingly, no evidence was ever presented to show that the girl herself distributed the photo. It was apparently sent by a friend, according to news accounts of the incident.

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. In the midst of the case, Skumanick lost a re-election bid and his replacement then took over the reins of the case.

The American Civil Liberties Union entered the case on behalf of the girl and her parents and saw it through the Appeals Court ruling, which was announced last week.

In it’s ruling, the U.S. District Court of Appeals for the Third District in Philadelphia wrote that felony charges in the case would violate the girl’s Constitutional rights forbidding compelled speech. The court also ruled that the charges would usurp her parent’s rights to raise their daughter, according to a story in The Legal Intelligencer.

This case should have never gone this far in the first place.

It was a case of teens being silly, teens being teens.

They participated in a stupid teen-aged prank, then were 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 have haunted them for life, in addition to requiring mandatory registration on government-kept lists of child sex offenders.

It was an overreaction from the start by the district attorney and the school district.

Thankfully, the U.S. Court of Appeals wisely put the kibosh on this ridiculous attempted prosecution.

The issue is certainly not over, however, elsewhere around the country where similar cases involving teens and sexting are still being reviewed, according to a story in The New York Times.

States around the country are looking at how to deal with these kinds of cases. “Some of the 14 states considering legislation would make sexting a misdemeanor, while others would treat it like juvenile offenses like truancy or running away,” The New York Times reported. Others believe that decriminalization and education are better approaches, the story said.

For now, it is a legal arena to watch to see what happens.

Like it or not, this will have an impact on our children and our communities.

Let’s hope that the legal system continues to get it right.

And in the meantime, let’s talk to our children and tell them that this is not responsible behavior on their part. That can make more of a difference than all the laws and prosecutions in our nation.