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Judge Blocks Charges in Sexting Case

By Jeralyn, Section Crime in the News
Posted on Tue Mar 31, 2009 at 07:48:01 AM EST
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The ACLU of Pennsylvania has scored a big win in the "sexting" case in Pennyslvania.

U.S. District Judge James M. Munley granted a request by the American Civil Liberties Union to temporarily stop Mr. Skumanick from filing felony charges against the three Tunkhannock Area School District students.

The ACLU lawsuit argues that the photographs in which the three teen girls appear are not p*rnographic and should be protected under the First Amendment.

The DA wanted to charge the teenage girls as accomplices to the distribution of child p*rnography for taking each other's pictures at a slumber party and then e-mailing the pix around to friends. More here.

How Appealing has the opinion here.

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    Judge Blocks Charges in Sexting Case | 25 comments (25 topical)

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    Felony charges for your frontal lobes (5.00 / 2) (#1)
    by Militarytracy on Tue Mar 31, 2009 at 08:02:05 AM EST
    not being as big as your bra size yet?  Jesus, you can't even be a kid anymore, do stupid stuff without putting the rest of your existence in this society in grave danger? Somehow we all just pop out of the womb ready to go to church and baking cupcakes for the school bake sale?  What is wrong with some people that our children must become their punching bags?

    Interesting opinion (5.00 / 2) (#2)
    by Steve M on Tue Mar 31, 2009 at 08:03:33 AM EST
    I confess that I simply don't see how a minor can be an "accomplice" to the distribution of their own photographs, any more than the minor in a statutory rape situation can be charged as an accomplice.  Isn't that Crim 101?

    yes (none / 0) (#19)
    by txpublicdefender on Tue Mar 31, 2009 at 12:11:55 PM EST
    It is Crim Law 101 that you can't prosecute the victim of a crime for being an accomplice to the crime.  This is ludicrous.

    This whole trend of prosecutors seeking child pornography charges against teenagers involved in taking and sending around these pictures really needs to be addressed by Congress and state legislatures to specifically exempt this type of stuff from the "child porn" statutes.  This type of behavior is absolutely not what those laws were intended to prevent.

    If they want to pass some other law to address it, then that is fine, but these kids should not be convicted felons, and forced to register as sex offenders.

    Parent

    Can we get the DA... (5.00 / 3) (#3)
    by kdog on Tue Mar 31, 2009 at 08:07:49 AM EST
    charged with child abuse now?  

    Ironically enough (5.00 / 1) (#4)
    by Steve M on Tue Mar 31, 2009 at 08:27:25 AM EST
    At the time that plaintiffs filed their complaint, [the prosecutor] had refused repeated requests to provide plaintiffs' counsel with copies of the pictures. He asserted that he could be charged with a child pornography crime for sharing a copy.


    Parent
    Sounds like an admission... (none / 0) (#5)
    by kdog on Tue Mar 31, 2009 at 08:41:33 AM EST
    of possession of contraband...somebody call SWAT:)

    Parent
    Wow, this dude smells freaky (none / 0) (#6)
    by Militarytracy on Tue Mar 31, 2009 at 08:42:43 AM EST


    Parent
    Self-righteous to an extreme (5.00 / 2) (#7)
    by Inspector Gadget on Tue Mar 31, 2009 at 08:50:58 AM EST
    which, is a direction this country seems to be heading.

    Yet, we harshly judge this kind of over-the-top, absurd behaviors when they happen in other countries.


    Parent

    this is an issue (none / 0) (#16)
    by Bemused on Tue Mar 31, 2009 at 10:11:00 AM EST
      I had a case where we (the defense) had to operate under a protective order which did not allow us to "receive" any of the files containing alleged child pornography.

      We were provided with access to an imaged hard drive but the defense team and experts were only permitted to access, view and analyze the imaged hard-drive at the FBI office where it was kept in a safe  to which we had the key.  

      All defense forensic work had to be done at the FBI using the imaged hard-drive, but our expert was permitted to bring his forensic software (Forensic Toolkit, EnCase, NMap, FBrute, asi recall) and generate reports which we allowed to remove.

      It was a burden and increased the costs a good bit because our expert was from elsewhere and had to travel to do his work. (we were reimbursed for the additional cost incurred as a result).

    Parent

    I doubt the FBI would find it necessary (5.00 / 1) (#17)
    by Militarytracy on Tue Mar 31, 2009 at 11:59:07 AM EST
    to lock photos of two 13 year olds in their bras in a safe and label them child pron.  If that's the case I had better call them and have them confiscate the packaging of the whole bra rack in the juniors department at JCPenny today.

    Parent
    That would not meet (none / 0) (#18)
    by Bemused on Tue Mar 31, 2009 at 12:03:25 PM EST
     the federal definition of "child pornography."

      I don't know the state definition in this case, but the federal definition requires either depicting a minor engaged in sexual conduct or a "lewd and lascivious" display of genitalia.

    Parent

    What they really want (3.50 / 2) (#12)
    by Jen M on Tue Mar 31, 2009 at 09:43:21 AM EST
    is to outlaw children.

    any good ideas? (2.00 / 0) (#8)
    by diogenes on Tue Mar 31, 2009 at 08:54:56 AM EST
    So when your daughter goes to a slumber party and someone later distributes her nude picture on the net without her consent, should there be any law or recourse against this?

    Against my daughter? (5.00 / 4) (#9)
    by Steve M on Tue Mar 31, 2009 at 09:08:30 AM EST
    No, I would be enraged if some crazy prosecutor threatened to prosecute my daughter for a felony as an "accomplice" to the distribution of her own picture.  Even assuming my daughter voluntarily had her picture taken - a fact you seem to have written out of your hypothetical - how the heck could that ever justify a felony charge?

    Parent
    Make sure your new baby (none / 0) (#14)
    by nycstray on Tue Mar 31, 2009 at 10:00:18 AM EST
    is swaddled head to toe before you send any pics around and avoid bath pics etc at all costs . . .

    Parent
    It appears that this DA (none / 0) (#10)
    by Matt v on Tue Mar 31, 2009 at 09:21:57 AM EST
     is of the same mindset and prone to employing much the same perversion of law and tactical intimidation as was used by Judges Mark Ciavarella and Michael Conahan, who were removed from the bench after pleading guilty to using their office for personal, illegal gain in a large number of cases also involving children in this same state over a long period of time.

    I expect that sooner or later kiddie pron (none / 0) (#11)
    by tokin librul on Tue Mar 31, 2009 at 09:35:39 AM EST
    along with sexual abuse of kids, will become a new class of capital offense...

    kiddie pron will probably become the wedge used by the Authoritarians to regulate the Tubez...

    My solution . . . (none / 0) (#15)
    by nycstray on Tue Mar 31, 2009 at 10:01:42 AM EST
    common freakin' sense!

    Smuck (none / 0) (#20)
    by TargetedCitizen on Tue Mar 31, 2009 at 03:45:41 PM EST
    Mr. Skumanick (Mr. Smuck) should be ashamed of himself for prosecuting these girls.  these are harmless adolencent stuff that this Smuck wants to make a name for himself at the expense of KIDS!
    I say, prosecute Smuck for his 'dirty' and 'evil'
    little mind; at least remove him and send him back to the file room where he can't do anymore kids harm!

    Wait a minute (none / 0) (#21)
    by jbindc on Tue Mar 31, 2009 at 03:54:42 PM EST
    The guy from the ACLU argued none of the girls took or distribute the photos in question.  So a) who took the pictures, and b) who sent them? Other girls at the party?

    And since the ACLU has argued that these are protected under the First Amendment, and since the pictures are out in cyber space, does that mean if a 35-year old guys in his apartment somewhere is looking at them or possesses them, he can't be charged then either?

    The ACLU lawsuit argues (none / 0) (#22)
    by sarcastic unnamed one on Tue Mar 31, 2009 at 04:00:38 PM EST
    The ACLU lawsuit argues that the photographs in which the three teen girls appear are not p*rnographic
    If they're not pron, isn't that pretty much the end of the conversation? No pron, no crime.

    Parent
    If the pictures do not meet (none / 0) (#23)
    by Bemused on Tue Mar 31, 2009 at 04:01:26 PM EST
     the statutory definition of child pornography it is not criminal to possess, send or receive them.

      The federal definition is (paraphrase) an image depicting a person less than 18 enagaged in sexual conduct or lewdly and lasciviously displaying genitalia.

      The federal judge found they were not pornographic, so I assume the pictures do not depict that or whatever might be necessary under state law.

       Images of what is sometimes caled "child erotica" are not illegal under federal law. thatthey might appeal to the prurientinterest of a possessor is not the issue. However, some courts allow the introduction of "child erotica" in child porn cases as 404(b) evidence intended to show intent, absence of mistake etc., with relation to the child porn.

    Parent

    clarification (none / 0) (#24)
    by txpublicdefender on Tue Mar 31, 2009 at 04:25:39 PM EST
    Just to be clear, the federal judge did not find that they were not pornographic.  He was only ruling on the request for temporary restraining order, so he found that the plaintiffs would likely prevail on the merits, but he didn't actually reach the merits in his decision.

    Parent
    you are correct (none / 0) (#25)
    by Bemused on Tue Mar 31, 2009 at 05:02:21 PM EST
    "While the court emphasizes that its
    view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts."

      I should not have relied on the blurb. But, the "in any way" adds a bit of bluntness to the prelimiary finding. The kids are not engaing in sexual activity or nude.
    ***

    This is the state statute and it is arguably  slightly broader than the federal statute because it includes "nudity... depicted for the purpose of ..." Otherwise the definitions are only different stylistically.

    18 PENN. STAT. § 6312, prohibits the distribution of images depicting a prohibited sexual act, and defines "prohibited sexual act" to mean "sexual intercourse . .. masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction."
    18 PENN. STAT. § 6312(a).

    Parent

    Sometime between 1969-1972 (none / 0) (#26)
    by Inspector Gadget on Tue Mar 31, 2009 at 11:28:59 PM EST
    this song was played over and over on the radio for about a week before it was banned for the seductive nature of it. No outrage, just disappointment for how something so beautiful could be deemed unhealthy for the young ears.

    Things sure have changed.

    Judge Blocks Charges in Sexting Case | 25 comments (25 topical)

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