CA- Prudish Prosecutors Charge Teenagers with Pornography and Worse For Sexy Text Messages

6-2-2009 California:

The police captain might be right, in one sense. Particularly for the unskilled or ill equipped, getting the angle right, the focus and lighting just so, might be an effort--too much for the unsteady hand, the shy poser, the butterfingers. Much better to take nude pictures with someone else, to make a game of it, a performance of seeing and being seen, anamuse-bouche before the banquet, or maybe in place of it. Safe sex, unless you're a teenager, in which case someone might want to arrest you.

Captain Seranko made his observation after three girls and three boys at Greensburg Salem High School were charged with child pornography. The girls, ages 14 and 15, are charged with taking pictures of themselves, nude or seminude; the boys, 15, 16 and 17, with receiving them. The cellphone in which these dangerous images were lodged had been confiscated at school, not an outrageous exercise of authority if school officials had merely stashed the phone in a drawer, unmolested, until the student could collect it. But the officials had to snoop. One can picture their fevered actions, fumbling with the student's phone, opening one folder, then another, maddened as they press the wrong buttons and must begin again, without the nimbleness of youth-curses--their otherwise desiccated imaginations now fertile with anticipated indecency; scouring through the teen's pictures and messages, expectant that their suspicions will be confirmed, certain that all they want is to protect the children... And yet, there they are, instant oglers, prying into places not meant for them, gazing at images not made for them, drenching the relationship between school authority and student in sex.

The recent attention to teen "sexting" has focused quite a lot on the presumed self-exploitation of kids, not so much on the prurient reflex of grown-ups who spy on and punish them. It has dwelt quite a lot on the traps of technology, not so much on the desires that precede picking up a camera. Quite a lot on the question of whether the teens are sex offenders or merely stupid, sluttish or mean, not so much on the freedom to see and be. Quite a lot on the legal meaning of images, not so much on the ways in which making them might delight, or on the cultural freakout that colors law, images and how they are perceived.

No one knows how many kids are poised for long sentences, life sentences (a possibility under federal law), plea deals that cast them in the pariah-land of sex offenders. Prosecutors have gone after teens in at least Ohio, Wisconsin, Florida, Oklahoma and Pennsylvania. School and police investigators in many states have searched students' phones, and now that the National Campaign to Prevent Teen and Unplanned Pregnancy has estimated that one in five teenagers is taking and sending nude or seminude pictures of themselves, and four in ten are sending sexed-up text messages, kids generally are at risk of surveillance or worse.

Across the state from where Captain Seranko was discoursing on nude photographs, District Attorney George Skumanick Jr. was threatening sixteen girls and four boys with felony charges. Officials at Tunkhannock Area High School had confiscated phones, discovered about 100 photos and called the DA, who told reporters that the kids could face seven years in prison. In February, Skumanick convened parents to say that their kids were involved in a child porn investigation but could avoid being nailed by submitting to a ten-hour re-education program, paying $100 and agreeing to an "informal adjustment," in effect a guilty plea before judgment in the juvie system, which would put them on probation for at least six months and subject them to random drug tests. If the kids get in trouble while on probation, they could end up with a juvenile record of the sex offense. And once Pennsylvania amends its laws to make sex offender registration and notice requirements apply to juveniles over 14, as required by the federal Adam Walsh Act, they will apply retroactively--meaning kids with records will have their names and pictures displayed on the state's sex offender website for at least ten years.

All but three families submitted to the DA's coercion. One father complained that his daughter was pictured simply wearing a bathing suit; Skumanick called the image "provocative," and she is being re-educated, writing a report on "Why it was wrong" to pose in her bathing suit, answering, "How did [it] affect the victim? The school? The community?" and learning "what it means to be a girl in today's society."

MaryJo Miller and Jami Day refused to inflict this madness on their daughters, who at 13 were photographed lying side by side in their thick white training bras while one, Marissa Miller, held a phone to her ear and the other, Grace Kelly, flashed a peace sign. Another mother, "Jane Doe," also refused on behalf of her 17-year-old daughter, "Nancy," who was photographed coming out of the shower topless, with a towel wrapped around her. When Miller saw the picture of Marissa and Grace, taken during a slumber party at her house two years ago, she laughed and called the girls "goofballs"; to the DA they were "provocative," and he moved to prosecute. On March 30 the Pennsylvania ACLU won a federal injunction barring Skumanick from filing charges against the three girls; Skumanick has appealed, and the ACLU's Witold Walczak expects the case to be tied up for a year.

"If this is criminal, you better go after Sears and J.C. Penney for their Sunday circulars," Walczak said of the photo of Marissa and Grace. A good line, but it leaves some questions floating in the spring air. What even defines what's criminal? Somewhere out there someone is flushed and warm poring over those Sunday circulars, the torsos lined up in their mature brassieres or big lady briefs, just as somewhere a latter-day Humbert Humbert's pulse is quickening at the vision of girls cavorting in school uniforms, let alone training bras. Rationality invites us to say, So what; fantasy has its place apart. Except the obsession with child porn and predators has ground fantasy into the dirt, and rationality flees like a hunted thing. The law invites us, instead, as Amy Adler brilliantly dissected in a 2001 Columbia Law Review article, to think like a pedophile, to read the lascivious, the sexually provocative, the exploitative potential into almost any image.

"As everything becomes child pornography in the eyes of the law--clothed children, coy children, children in settings where children are found--perhaps everything really does become pornographic," Adler wrote in "The Perverse Law of Child Pornography." DA Skumanick only seems bizarre; in fact, he and school officials are doing what judges and juries in child porn cases have been doing for years, lingering over images, searching for signs of the erotic or proto-erotic, pondering What if? Maybe so? One might think... and welding the child to sex.

But what of the teenagers--not Marissa or Grace or Nancy, but others, perhaps those kids in Greensburg--who mean to be sexy, for their boyfriend, their girlfriend, themselves? There is nothing new about teenagers having sex and taking pictures, or indulging in fantasy as a substitute; nothing new about the mixed thrill of having a secret and risking exposure, or sharing that "secret," sometimes clumsily. The new means of production carries pitfalls as surely as the fleeting passions of a teenager. The rude boy documenting a girl going down on him unawares to share behind her back with his MySpace buddies will always be with us, but her problem, and his too, started before the shutter clicked. The girl who has mastered the nude self-portrait may later regret its mass circulation, but she may also have got comfortable in her skin while taking pictures. Maybe the Polaroid Land Camera should make a comeback, but it is just possible that the 15-year-olds are envisioning, however inchoately, a saner world than the one the grown-ups lecturing them have constructed, one where their life chances won't be ruined by a "compromising" photograph on the Internet. If sexting really is as common as is claimed, it's more likely to proliferate than to abate, and then the issue won't be scandal or embarrassment but banality.

The truth is, a lot of good can come of taking nude pictures. Not so much the image as the act, and less the act of sex than the play of love, or imagination or freedom among friends. Remember play? Remember dalliance? Remember the captured glimpse of a lover stripped and weak with need? Grown-ups, don't get comfortable. A bill in the Massachusetts Legislature proposes to criminalize nude pictures of people over 60 and people who are disabled, for their own protection. ..Source.. by JoAnn Wypijewski, a former senior editor of The Nation, is based in New York City.