ALLENTOWN, PA — With the help of the American Civil Liberties Union, three teenage girls are suing the Wyoming County District Attorney to stop him from prosecuting them for child pornography.In a federal lawsuit filed Wednesday in the U.S. District Court for the Middle District of Pennsylvania, the teens say DA George Skumanick’s threat to prosecute them violates their civil rights. The girls, two of whom were 13 when the images were created, were charged with child porn distribution after a friend took pictures of them partially clad and sent the images to classmates via cell phone. The 13-year-olds were topless except for their bras, and a 16-year-old was wearing only a towel around her waist.
All three girls said they allowed themselves to be photographed “for fun,” but none of them agreed to let the images be shared. The lawsuit also claims the images are protected speech and do not violate Pennsylvania’s child-porn laws because they do not depict sexual activity nor do they display the girls’ pubic areas.
“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 lawsuit states.
“It’s not just pictures of kids that may show a little bit of flesh,” ACLU Of Pennsylvania Legal Director Witold Walczak told Wired.com’s Threat Level blog. “It’s either got to depict sexual activity or it’s got to be some lascivious display. 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.”
The situation highlights the passionate discussion surrounding “teen sexting,” a relatively new phenomenon that has arisen at the intersection of technology and free speech. At least two dozen minors in several U.S. states have been arrested and charged with child-porn production, possession and/or distribution after naked or suggestive photos of themselves or classmates were found on their cell phones. Law enforcement sees the practice as illegal, but critics charge that prosecuting teens who are exploring their sexuality perverts the intent of the law: to protect children from predatory adults.
“Teens are stupid and impulsive and clueless,” Walczak told Threat Level. “But that doesn’t make them criminals.”
In the Wyoming County case, Skumanick said he would forego criminal charges if the girls’ parents agreed to allow their daughters to be placed on six months’ probation. In addition, the girls would have to attend a 10-hour education program about “what it means to be a girl in today’s society” and submit to routine drug testing. The parents refused the deal.
If the girls were to be convicted under the state’s child-porn laws, they would face seven-year prison sentences and would be required to register as sex offenders for 10 years after release. Although Pennsylvania’s law currently does not require sex-offender registration for juveniles, an amendment adding that provision is expected to pass later this year.
During a school district investigation involving the images of the three girls, 20 male students were found to have the images on their cell phones. Skumanick has threatened to prosecute the boys as well unless they also agree to six months’ probation, pay a $100 fine and attend counseling and education sessions.
The lawsuit filed Wednesday also alleges Skumanick’s requirement that the teens be placed in a re-education program violates the Fourth Amendment right of parents to direct the upbringing of their children.
Skumanick, who is running for reelection in May, said his office’s actions were less severe than those taken in other parts of the country.
“In other places around the country, they’ve simply charged [teens] and not given them an opportunity to avoid a criminal record,” he told Threat Level. “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.”
“Child porn charges that land you on an internet registry even if you’re a juvenile?” Walczak countered. “That’s a heck of a way to teach a kid a lesson about not being careless.”
