Sexting: The Kids (And ACLU) Fight Back

WYOMING COUNTY, Pa. — It was bound to happen: Some kids who got busted for "child pornography" for sending nude or scantily-clad pictures of themselves and/or their friends to other friends' cellphones are fighting back ... and thankfully, the ACLU is there to help them.

The case at issue involves Marissa Miller, Grace Kelly (no, not that one; she's dead) and "Nancy Doe," all of whom are minors and all of whom attend public school in the Tunkhannock School District in Wyoming County ... and all of whom are featured in cellphone photos in various states of undress — one with bare tits; the other two in opaque white bras — which male students in the same district had been trading with each other until they were discovered and their phones confiscated.

Enter Wyoming County District Attorney George Skumanick, Jr., to whom school officials turned over the porn-bearing cellphones. Skumanick promptly convened an assembly at one of the schools to warn students that they could be charged with possessing child pornography if they traded such pictures, and later sent letters to 20 students (including the three girls) threatening to file felony child porn charges against them unless they agreed to six to nine months of probation during which they would attend a "five-week, ten-hour education program to discuss why what they did was wrong and what it means to be a girl in today's society."

Oh; and they'd also all have to submit to drug testing, even though none of them had ever been accused of using illicit drugs.

Did we mention that Skumanick is running for reelection in May?

But the girls — and, perhaps more importantly, their parents — decided that Skumanick's amateur pretrial diversion just wasn't right, so they went to the Pennsylvania chapter of the American Civil Liberties Union and asked to file suit against Skumanick.

"Since there is no basis to prosecute the girls for posing in photographs that plainly are not child pornography, in terms of content or production," the ACLU complaint reads, "Skumanick's threat to prosecute the girls must be considered retaliation against the plaintiffs for asserting their constitutional rights - the parents' right to direct their children's upbringing and the girls' rights both to free expression and against compelled speech - in refusing Skumanick's demands."

As the ACLU lawsuit points out, the Pennsylvania statute covering child pornography defines it as images of "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." The suit charges that the images in question "do not fall within the definitions of the materials prohibited."

"Skumanick’s decision to prosecute the subjects of the photographs, the three plaintiff minors, is unprecedented and stands anti-child-pornography laws on their head," the complaint continues. "Anti-child-pornography laws are intended to protect the children shown in the photos and videos, and plaintiffs' counsel has found no published Pennsylvania or federal court decision sustaining such a prosecution against minors shown in such pictures."

Skumanick's response?

"In other places around the country, they've simply charged [teens] and not given them an opportunity to avoid a criminal record," he told "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."

The kids' parents didn't consider Skumanick's actions to be "helping."

"The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection," the ACLU complaint notes. "They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them 'provocative.' Furthermore, Skumanick’s insistence that the plaintiff parents force their children to attend a re-education course interferes with the parents’ right to direct and control their children's upbringing."

While it's unclear how a court will view the cellphone photos, there's no doubt that the girls (or whoever actually took the pictures) did not intend to create "child pornography."

"Teens are stupid and impulsive and clueless," assessed Witold Walczak, legal director of the ACLU of Pennsylvania. "But that doesn't make them criminals. Child porn charges that land you on an internet registry even if you're a juvenile? That's a heck of a way to teach a kid a lesson about not being careless."

Not to mention, if the girls were convicted of the threatened offense, they'd have to spend at least 15 years 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.

That'll teach 'em!