PA- ACLU sues Wyoming County DA over threat of charges for sexting

3-25-2009 Pennsylvania:

Three students in the Tunkhannock School District in Wyoming County have filed a federal lawsuit against the district attorney there, claiming that his threats to charge them with child pornography for sending pictures of themselves either topless or in bras amount to abuse of his authority.

The lawsuit, filed by the American Civil Liberties Union, also says that District Attorney George Skumanick Jr. is engaging in retaliation against the girls and their parents, who do not want their children to enter into a probationary and re-education program for the behavior as Mr. Skumanick has requested.

The case came to light in October, when school officials seized a number of cell phones from students in the district. They examined them and found pictures of scantily clad and naked teenage girls, many who were enrolled there, the lawsuit said. Male students had been trading the photographs on their cell phones, the district said.

Mr. Skumanick said publicly that students who possess inappropriate pictures of minors could be prosecuted.

In the photos in question, two girls, Marissa Miller and Grace Kelly, are seen lying side by side in their bras. One of them is talking on a phone, while the other makes a peace sign. In the second picture, the third girl, who is not named in the lawsuit, is seen emerging from the shower, with a towel wrapped around her, below her breasts.

"The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania's crimes code and, indeed, are images protected by the First Amendment," the lawsuit said.

Mr. Skumanick has threatened charges of child pornography against the girls -- though not against the people distributing the pictures on their cell phones, the lawsuit said.

To avoid charges, he has offered probation and a five-week, 10-hour "re-education program," that would help the girls "[g]ain an understanding of how [their] actions were wrong," "gain an understanding of what it means to be a girl in today's society," and "[i]dentify non-traditional societal and job roles."

The lawsuit asserts that the photographs are constitutionally protected by the First Amendment, and that they are not child pornography.

If they are convicted, the plaintiffs contend, the girls would have a felony record and could be subjected to state Megan's Law provisions, which would require them to register as convicted sex offenders.

"Kids should be taught that sharing digitized images of themselves in embarrassing or compromised positions can have bad consequences, but prosecutors should not be using heavy artillery like child-pornography charges to teach them that lesson," said Witold Walczak, legal director for the ACLU of Pennsylvania. "These are just kids being irresponsible and careless; they are not criminals and they certainly haven't committed child pornography." ..News Source.. by Paula Reed Ward, Pittsburgh Post-Gazette