Appeals Court Rules Against Compelled Essays for Kids in Sexting Case

March 22, 2010 by David S. Seltzer

An appeals court ruling from last week will have an importance influence on my work as a Miami-Dade cyber crime defense attorney. In a sexting case, the Third U.S. Circuit Court of Appeals ruled that a Pennsylvania district attorney may not compel teenagers to participate in his alternative sentencing program by threatening them with prosecution for child pornography if they didn’t participate. The New York Times reported March 17 that ruling came in a lawsuit filed by the teens’ parents, who said the program illegally compelled speech from the students, interfered with their parental rights and retaliated against the students for refusing to participate. The unanimous three-judge panel did not resolve the case, but did uphold an injunction barring the district attorney’s office from prosecuting the teens.

The three teens, all girls, appeared in photographs being traded between boys in Wyoming County, Pennsylvania. Two of the girls were 12 or 13 at the time and appeared in bathing suits or underwear; an older girl was photographed naked except for a towel around her waist. School officials discovered the pictures and turned them over to then-DA George Skumanick, who identified 16 students who had or were in the pictures. He told the three girls’ parents that he would file felony child pornography charges against them if they didn’t agree to probation, drug testing and a 10-hour education program about what they did wrong and “what it means to be a girl in today’s society.” The parents, believing the pictures did not constitute child pornography, sued Skumanick. He later lost an election to retain his seat as DA, but the lawsuit against his former office continued.

In its ruling, the Third Circuit declined to directly address the legal issue of whether the teenagers could be charged with making child pornography if they were taking the pictures themselves. Instead, it addressed only the civil rights claims the families made, and said they had a good chance of success on remand to the trial court. But in the ruling, the justices criticized the district attorney’s assertion that the girls were guilty of child pornography crimes because they were in the photos. Appearing in a photograph is not proof of having possessed or transmitted it, they said. They also disapproved of Skumanick’s alternative penalty, writing that he did not have the authority to “coerce parents into permitting him to impose on their children his ideas of morality and gender roles.”

As a West Palm Beach cyber crime criminal defense lawyer, I’m pleased that this ruling allows these families to resume their lives without threat of prosecution. However, I’m disappointed that the court missed an opportunity to make a stronger statement against the practice of criminal charges in teen sexting cases. Child pornography laws were written to penalize adults who prey on children. In most sexting cases, where the teens photograph themselves, the producer of the images is the same person as the “victim,” which makes prosecution nonsensical. It also has long-lasting, life-altering consequences. As the New York Times recently wrote, teenagers have been criminally prosecuted for sending their own photos to someone else, and some have ended up on sex offender registries for decades, which severely restricts their residency, movement and future options.

Some states have responded relatively fast to the problem, creating new laws that treat teens caught sexting differently from adult pornographers. Florida’s Legislature is currently considering a law that would decriminalize it on a first offense, requiring eight hours of community service for minors caught possessing or sending explicit pictures of themselves. Pictures sent in the same 24-hour period count as one offense. A second offense is a misdemeanor and a third offense is a felony equivalent to a single count of possession of child pornography. As a Fort Lauderdale cyber crime criminal defense attorney, I would also like to see the Legislature address penalties for kids who pass on someone else’s picture. But this bill would go a long way toward preventing adult child pornography laws from ruining the lives of kids involved in normal sexual experimentation.