Analysis: With Sexting, There's Nothing Magic About 18

PHILADELPHIA—If there's been one blindingly bright line in U.S. criminal law, it's that depending on which month he/she was born, when a person is 17 years, 11 months and 30 or 31 days old, that person is a minor, with all the rights, protections and restrictions attendant to "childhood"—but wait one more day and that same person can legally vote, enter into contracts ... and act in an adult movie. But had the person performed in that same adult movie one day earlier, the product would be child pornography, its producer and director could be (and in today's climate, likely would be) arrested, and the child possibly sent to a juvenile detention facility.

It's unclear why this "age of majority" was established at 18 (or in Alabama and Nebraska at 19, and in Mississippi and D.C. at 21). In the Jewish religion, for example, a male is considered a "man" on his 13th birthday, and in the laws of several foreign countries the age of adulthood varies, beginning for some at age 14. Though most countries accept 18 as the turning point, there's no scientific or historical reason for 18 to be the dividing line.

But the point is, "18 equals adult" is a legal concept, not a physiological one ... and legal concepts have been known to change. Perhaps the controversy over "sexting"—transmitting sexually explicit words or images over cell phones and similar devices—will force the law to come to grips with the reality of sex.

The controversy reached the Third Circuit Court of Appeals on Jan. 8 when students Marissa Miller, Grace Kelly and "Nancy Doe," all of whom are minors and all of whom attend public school in the Tunkhannock School District in Wyoming County, pressed their case against local District Attorney George Skumanick Jr., who threatened to prosecute the girls for having created what Skumanick claimed were child porn photos of themselves in various states of undress.

The case began in October of 2008, when the school district confiscated several students' cell phones and found that a few contained photos of "scantily clad, semi-nude and nude teenage girls," including of the three plaintiffs here. The school district promptly turned the phones over to Skumanick, who, according to the Memorandum by Judge James M. Munley supporting a Temporary Restraining Order (TRO) against Skumanick, began a criminal investigation of the girls.

"In November 2008, Skumanick stated publically to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, or criminal use of a communication facility," Judge Munley wrote. "Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania’s Registration of Sexual Offenders Act ('Meghan’s Law'), for at least 10 years and have their names and pictures displayed on the state’s sex-offender website." [Citations removed here and below]

The claims that the images were child porn were ludicrous. Miller and Kelly appeared in one photo, apparently taken when each was about 13, from the waist up, dressed only in white "training" bras, while Doe's photo had her apparently just stepping out of the bath, wrapped in an "opaque, white" bath towel which left her tits exposed but covered her genitalia. Skumanick claimed that the images were posed "provocatively," which to him meant they were child porn.

But Skumanick offered a solution in a letter he sent to the parents of 16 students, including the girls whose photos were on the phones, and any student who had a phone containing one or more of the photos: The charges would be dropped if the child successfully completed a six- to nine-month program focused on education and counseling.

"The proposed program—which the plaintiffs call a 're-education program'—is divided between girls' and boys' programs," Judge Munley described. "The program is designed to teach the girls to 'gain an understanding of how their actions were wrong,' 'gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,' and 'identify non-traditional societal and job roles.' Included in the 'homework' for the program is an assignment including '[w]hat you did' and '[w]hy it was wrong.' The program was initially purported to last six to nine months, but was eventually reduced to two hours per week over five weeks. ... During the hearing on the TRO conducted by this court on March 26, 2009, the defendant reiterated that he intends to charge the girls if they refuse to participate in the education program."

According to the plaintiffs, agreeing to participate in the "education program" was tantamount to a guilty plea on the child porn charges—but even though several of their fellow students agreed to take the course (at a cost of $100 each), the three girls and their parents promptly sued Skumanick (who failed of reelection last summer) under 42 U.S.C. §1983 for deprivation of their right of free expression, and sought a TRO to prevent the forced "education program." The TRO was granted, and a Third Circuit panel consisting of Judges Thomas L. Ambro, Walter K. Stapleton and Michael A. Chagares heard the appeal of that TRO on Jan. 8.

"In his prosecutorial discretion, he [Skumanick] was attempting to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous," wrote Skumanick's attorney Michael J. Donohue.

But despite taking that position in his pretrial brief, Donohue argued in front of the three-judge appeals panel that his client no longer planned to charge Miller and Kelly for their "training bra" photos, but did plan to charge Doe with child pornography for her topless post-shower shot.

"When a kid disseminates a picture of themself, it puts themself and other children at risk," the grammatically challenged Donohue averred. "Naked pictures of children, disbursed on the Internet, draws predators the same way a swamp draws mosquitoes."

But the main problem with the case is one which none of the attorneys nor any of the panel members addressed: How can it be that all children aged 17 years, 11 months and 30 days or younger must be considered too "innocent" to appear in nude or sexually explicit images—"child pornography"—from which they must be universally "protected," and yet if those children do create such images, they must be considered debauched enough to serve as much as five years in federal prison?

Judge Ambro came closest to reaching this key issue.

"You are saying you can bring an action for sexual abuse of a minor if the minor themselves transmitted a picture of themself?" the equally challenged Ambro asked Donohue.

"If the transmission was for sexual gratification, yes," Donohue replied, failing to identify who was alleged to have received the gratification.

But defense attorney Witold "Vic" Walczak of the American Civil Liberties Union (ACLU) pointed out the flaw in Donohue's reasoning.

"If he [Skumanick] has evidence of sexual abuse and exploitation, why is he charging her?" asked Walczak, referring to the topless Doe. "She is the victim."

Indeed; a victim of whom? While Doe's photographer has yet to be identified, it's clear that Doe wanted the photos taken, though she apparently never wanted them to be spread all around the school district on cell phones, as occurred in this case. But does that even make the kids who passed the photos along to their classmates child pornographers as well? Or are they too "victims" owing to their minority status?

Even Judge Ambro recognized the grave implications of Skumanick's position, accusing the attorney of "flipping" child porn laws in order to prosecute children.

"If that's your goal—to protect them—then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?" Ambro asked.

Donohue responded that kids who "sexted" could indeed be both victims and perpetrators—a philosophical conundrum ripe for Supreme Court consideration—but claimed, according to an article in the Wilkes-Barre (Pa.) Times-Leader, that those who knowingly transmitted sexually explicit photos would have to be held accountable for their actions because it harms not only them, but other children who are put at risk.

Still unexplained, however, was how a child who takes a nude or explicit photo of him- or herself, or who has one taken at his/her direction, "harms" him/herself or other children, aside from the nostrum that (adult) pedophiles use such photos to seduce other children. But in that case, no one blames the child whose photo was used; they blame the pedophile.

Even MaryJo Miller, the mother of one of the "training bra" gals, saw no harm in the photos.

"I thought they were goofballs," Miller recalled thinking when she first saw the photos of her daughter and Kelly, which were taken at a slumber party several years ago. "There was nothing wrong with that photo. ... You're going to see more provocative photos in a Victoria’s Secret catalogue."

In any case, the panel also took umbrage with Skumanick's proposed solution, saying it was outside the law's approved remedies to the situation.

"I don't know of anything that says a district attorney's office is allowed to, in effect, play the role of teacher," Judge Ambro said, later suggesting that the "re-education classes" interfered with the rights of the girls' parents to educate their children as they saw fit, or could be considered to be improperly "compelled" speech, since the girls would have been forced to write an essay admitting they were wrong to engage in sexting.

"Should we allow the state to force children, by threatening them with prosecution, to attend education programs expounding a particular government official's views of what it means to be a girl in today's society?" he asked.

Judge Ambro appeared to be agreeing with a point Walczak had made in his pretrial brief: "The girls have a First Amendment right not to be forced to mouth the views that Skumanick believes appropriate for 'girls in today's society' and their parents have a 14th Amendment right to direct their daughters' education, which includes the right not to subject them to a program that reflects Skumanick's views of what it means to be female in today's society."

Judge Chagares similarly objected, but Donohue pointed to the class's six-page curriculum which, he said, focused mostly on avoiding sexual predators.

But when Chagares asked Walczak, "Should we be serving as a screening mechanism for sexting cases—or any other kind of cases?" the ACLU attorney responded that he thought the federal courts "should stand as a bar to any state official who is imminently violating or threatening to violate somebody's constitutional right—and that's what Judge Munley did in this case."

"[S]exting prosecutions are an abuse of prosecutorial discretion and are inconsistent with the juvenile act's purpose of providing rehabilitation and treatment," wrote attorneys Marsha L. Levick and Riya S. Shah of the Juvenile Law Center in an amicus brief supporting the defendants.

"Turning them into sex offenders is an odd way to protect kids," Walczak said after the oral argument had been completed.

As AVN previously noted, if the girls were convicted of creating and/or transmitting child porn, they'd have to spend more than a decade on the federal Sex Offender Registry list, be barred from living within a certain distance from other children, and probably be forced to be home-schooled, since they would be forbidden to associate with their former schoolmates or anyone of a similar age.

But when all is said and done, the courts (not to mention the mass of U.S. citizens) are going to have to realize at some point that many children, despite being legally considered minors, are sexual beings, as noted in a recent article by Claire Shipman and Cole Kazdin for ABC News.

"In the documentary, Oral Sex Is the New Goodnight Kiss, girls as young as 11 years old talk about having sex, going to sex parties and—in some extreme situations—crossing into prostitution by exchanging sexual favors for money, clothes or even homework and then still arriving home in time for dinner with the family," Shipman and Kazdin wrote.

The documentary is the work of Canadian filmmaker Sharlene Azam, who said, based on her four years of research, that oral sex is as common as kissing for teens and that casual prostitution—being paid at parties to strip, give sexual favors or have sex—is far more commonplace than once believed.

"Five minutes and I got $100," one girl said. "If I'm going to sleep with them, anyway, because they're good-looking, might as well get paid for it, right?"

"I mean, we're not looking for our future husbands," another girl offered. "We're just looking for, maybe like ... at our age, especially, I think all of us, both sexes, we have a lot of urges, I guess, that need to be taken care of. So if we resort to a casual thing, no strings attached, it's perfectly fine."

Bottom line: Many minors are interested in sex, and it's time that America's court system recognized the fact.