3-30-2009 Pennsylvania:
ALLENTOWN, Pa. (AP) — A federal judge on Monday temporarily blocked a prosecutor from filing child pornography charges against three northeastern Pennsylvania teenagers who appeared in racy photos that turned up on classmates' cell phones.
U.S. District Judge James Munley ruled against Wyoming County District Attorney George Skumanick Jr., who has threatened to pursue felony charges against the girls unless they agree to participate in a five-week after-school program.
One picture showed two of the girls in their bras. The second photo showed another girl just out of the shower and topless, with a towel wrapped around her waist.
"We are grateful the judge recognized that prosecuting our clients for non-sexually explicit photographs raises serious constitutional questions," Witold Walczack, legal director of the American Civil Liberties Union of Pennsylvania, said in a statement.
"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result" when teens send sexually suggestive photos of themselves and others to one another, he said.
Skumanick, who has said he can prosecute the teens as "accomplices" in the production of child pornography, said he would consider an appeal.
The ruling "sets a dangerous precedent by allowing people to commit crimes and then seek refuge from state arrest in the federal courts," he said.
The photos surfaced in October, when officials at Tunkhannock Area High School confiscated five cell phones and found that boys had been trading photos of scantily clad, semi-nude or nude teenage girls. The students with the cell phones ranged in age from 11 to 17.
Skumanick met with about 20 students and their parents last month and offered them a deal in which the youths wouldn't be prosecuted if they took a class on sexual harassment, sexual violence and gender roles. Seventeen of the students accepted the offer, but three balked and sued Skumanick last week.
The suit, filed by the ACLU, said the teens didn't consent to having the picture distributed and that the images are not pornographic. The ACLU said Skumanick's threat to prosecute is "retaliation" for the students' refusal to participate in the class.
Munley's decision to grant the teens a temporary restraining order prevents Skumanick from filing charges while the lawsuit proceeds.
The girls "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. Even if they were such depictions, the plaintiffs' argument that (they) were not involved in disseminating the images is also a reasonable one," Munley wrote.
Under Pennsylvania's child pornography law, it's a felony to possess or disseminate photos of a minor engaged in sexual activity, "lewd exhibition of the genitals" or nudity that is meant to titillate.
The judge said he "offers no final conclusion on the merits of plaintiffs' position" and scheduled a hearing on the case for June 2. ..News Source.. by MICHAEL RUBINKAM
March 30, 2009
PA- Federal judge blocks charges in Pa. 'sexting' case
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We do not condone the exploitation of children in any form. These laws were enacted at a time when possession was thought to drive demand. At that time one would need to pay for photographs, films or magazines. The Internet has obviously changed that. Pornography is the number one use of the internet and is viewed regularly by over 40 million persons a day(3). Most child pornography is not viewed on the Internet with any economic exchange. Our legislators are making laws to address the heinous exceptions and then applying these harsh laws to a broad offender group, most of whom have nothing in common with monster predators.
Sexting and possession of Internet child pornography is a 21st century crime for which there is currently no effective legal answer. The current U.S. legal system response is oversimplified and ineffective. It casts a wide net, convicting those who access illegal material while turning a blind eye to those who produce and distribute it to the public. "These penalties have been increased arbitrarily and are irrationally based on political demands, and "enhancement: specifics so ill-defined that they apply in almost every case. These guidelines treat even first time offenders with no history of abusing or exploiting children as seriously as murders, rapists or child molester" Troy Stabenow, former military prosecutor. (June 10, 2008} According to Stabenow's analysis nearly 80 percent of all child pornography defendants in 2006 had no prior felonies of any kind, let alone a history of sexually abusing or exploiting a child(6).
as restraint, add a lot more years.: Editor.]
SKEWED DATA:
The group studied by the Commission included "a significant portion of child pornography offenders who have a criminal history that involves the sexual abuse or exploitation of children." That group bears little resemblance to the average offender sentenced today.
Moreover, the guidelines are predicated on the untested assumption that anyone who would access and view child pornography is a potential child molester-an assumption for which critics say, the evidence is both scant and inconclusive. "Under this approach, it is enough that there is a potential for harm, that the individual's psychological makeup-or political inclinations-pose a grave risk. This attitude rips a large hole in the fabric of our American concept of justice. We do not allow incarceration for the propensity to commit a crime. In our system, the punishment should never precede the crime."
"Consuming child pornography alone is not a risk factor for committing hand-on sex offenses, at least not for those subjects who had never committed a hands-on sex offense. The majority of the investigated consumers had no previous convictions for hands-on sex offenses. For those offenders, the prognosis for hands-on sex offenses, (likelihood of no such criminal actions occurring) as well as for recidivism (lack of return to previous behavior) with child pornography is favorable(7).
DISCREPANCIES IN PUNISHMENT:
patricia w, Baltimore
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