How Not To Prosecute a Sexting Case

A federal court rebukes a district attorney who cracked down on three girls over seminude photos.

George Skumanick should give lessons in how not to respond to teenage sexting if you work in law enforcement. The former district attorney for Wyoming County in rural Pennsylvania did just about everything wrong when, in 2008, local school officials turned over to him photos of teenage girls that boys were trading on their cell phones. Skumanick didn’t try to determine whether the girls had been harmed by the sexts. Instead, he called the girls in and threatened to prosecute them for child pornography unless they attended a six-to-nine-month “education and counseling” program of his own devising.

On Wednesday, the U.S. Court of Appeals for the 3rd Circuit stopped Skumanick’s ill-advised plan. The court’s opinion doesn’t go as far as it might have in rejecting Skumanick’s approach of treating the sexting as potential child porn. But it’s still a welcome judicial check on prosecutors who overstep their bounds when confronted with a girl’s breasts on a cell phone screen.

The oddest thing about Miller v. Mitchell, as the girls’ lawsuit against the district attorney’s office was renamed after Skumanick lost his bid for re-election last November, is that the sexts were barely sexy. Two of the girls were photographed in white bras—one was talking on the phone; the other was making a peace sign. At the meeting Skumanick called with the girls and their parents, the mother of one said the kids were just being “goofballs” and asked how the photos could constitute child pornography. The district attorney said the girls were posing “provocatively.” Skumanick later folded—his only sensible move in the case—by agreeing not to bring charges against these two girls. That left a third 16-year-old girl, called Nancy Doe in the court’s opinion, whose photo showed her wrapped in a towel, with her breasts showing, “appearing as if she just had emerged from the shower.”

It’s possible that such a photo, in the hands of jeering boys, could cause a girl trouble. Just think about all the things guys that age have to say about the size and shape of someone’s breasts and how easy it is to get called a slut. But that wasn’t Skumanick’s focus. The district attorney threatened only the girls with the child porn charges; he took no parallel action against the boys. (In describing the case at oral argument before the 3rd Circuit, Skumanick’s lawyer dismissed the question of how the photos were circulated with an airy, “high-school boys did as high-school boys will do and traded the photos among themselves.”) Nancy, meanwhile, was told by Skumanick that she would be charged with a felony—one that entails registering for life as a sex offender in Pennsylvania, according to the ACLU—unless she obediently went through his re-education program. This included writing a report about why what she did was wrong and learning, from the district attorney’s office, “what it means to be a girl in today’s society.”

Nancy’s parents (along with the parents of the other two girls, who at the time weren’t off the hook yet) refused to send their kids to Skumanick’s classes and sued to stop him from prosecuting the girls. They argued that the district attorney was interfering with their constitutional right to direct their children’s upbringing and violating the girls’ First Amendment right protecting against compelled speech by requiring that they write essays about how they’d done wrong.

The district court ruled for the girls and their parents, issuing a temporary restraining order that stopped the prosecution and the re-education. A three-judge panel for the 3rd Circuit upheld that ruling this week. The parents’ constitutional right to raise their children free of state interference extended to refusing the district attorney’s program, the court found. Unlike a school district, his office has no secondary responsibility for educating kids, and so, the court said, he “may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles.” The kids’ free speech rights also prevented him from threatening prosecution if they refused to do what he asked them. The court pointed to a “disconnect” in an effort by the criminal justice system to instruct on the meaning of gender, which is hardly its job.

The three-judge panel also said that that district attorney had no probable cause to charge Nancy, because Skumanick had no evidence that she possessed or distributed the photo—which, after all, was found not on her cell phone but on the phones of her classmates. This part of the ruling signals to girls (or boys) who are the object of sexts that they won’t be prosecuted simply for having their photo snapped—which is important for persuading them to come forward, as Nancy Willard of the Center for Safe Internet Use has pointed out.

The court did not, however, weigh in on the question of whether teens who take nude or seminude pictures of themselves are creating child porn in the first place. The ACLU urged that position in representing the girls and their parents. But the 3rd Circuit clearly wasn’t ready to take such a stance. This wasn’t surprising, “given that courts are reluctant to decide issues they don’t have to rule on,” said Witold Walczak, legal director for the ACLU of Pennsylvania. “But the case doesn’t resolve any of the looming constitutional questions implicated by sexting prosecutions.” Questions like whether boys who trade photos in a case like this one should be prosecuted, and for what. Should states write statutes with lesser penalties for teenagers to keep them off sex registries? Or should they leave law enforcement out of the disciplinary picture in cases like these? More here on this larger fight going on in several states.

In the end, George Skumanick is such an outlier that his loss on appeal won’t mean all that much in terms of setting precedent. Other prosecutors can find ways to be hard-charging about sexting. The problem for the court here was the retaliation for not attending the education program, after all, not the idea of the prosecution in itself. But as organizations like the National District Attorneys Association back away from harsh reprisals against teens who sext in most contexts, the 3rd Circuit’s ruling has a like-minded ring of sanity. A girl who poses in her bra while making a peace sign, or whose photo is snapped while she’s coming out of the shower in a towel, shouldn’t have to sit in class for months while a prosecutor’s office schools her on female identity. Or anything else.

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