3-21-2010 Pennsylvania:
Prosecutors say an appeals court decision signals the need for new legislation. Opponents say it shows why teen sexting isn't a crime.
Depending on your view, a federal appeals court ruling last week either:
A) Highlights the need for Pennsylvania to change the laws that govern what happens when teens send nude pictures of one another via cell phone, or
B) Is further proof that prosecutors are unnecessarily and unfairly punishing teens for foolish, but not criminal, behavior.
Supporters of answer A include state Rep. Seth Grove (R-Dover Township) -- whose bill that would make teen sexting a misdemeanor offense moved out of committee last week -- and York County chief deputy prosecutor Jeff Boyles, who handles teen sexting cases.
Among those in camp B are the attorneys for the American Civil Liberties Union that represented the teens in the case before the U.S. Court of Appeals for the Third Circuit.
The court ruled Wednesday that the Wyoming County district attorney could not bring child pornography charges against a girl who refused to enter a diversionary program after images of her were found on cell phones at a high school.
The court found that the DA did not establish probable cause that the girl took or distributed a photo that showed her breast, and that the DA acted unfairly in offering her and other teens a choice: Take classes about the consequences of sexting or be charged with felony distribution of child pornography. Charging the girl after she declined the offer would have been retaliatory, the court ruled.
The court did not address whether nude images of teens sent via cell phone are child pornography.
Is charging necessary?
When a teen is caught with creating or sharing consensual nude images of other teens in York County, they are charged with a misdemeanor and referred to a Youth Aid panel.
If they work with the panel and surrender the phone with the image, Boyles said, the charges will be dismissed and the teen will not have a record. As far as he knows, every teen charged has gone through the Youth Aid panel, Boyles said.
The court's ruling doesn't impact that policy, Boyles said.
"You're charged with a crime and in the course of prosecuting that crime, you're offered a chance to go to the diversionary program," Boyles said. "We're not threatening anyone. We're saying, you've broken the law, now here's a chance to help yourself."
Witold Walczak, of the ACLU, disagrees.
"How does it make sense to say you can't threaten but you can bring the charges," Walczak said. "If it's wrong to threaten, it's OK to charge? ... It sounds pretty close to what was going on in Wyoming County, but (Boyles is) pulling the trigger faster."
There is a difference, Boyles said.
"If you follow his logic, there could be an injunction anytime we get involved in a prosecution," Boyles said. "It makes no sense."
While Boyles doesn't want teens marked as sex offenders for life, charging them is the only way to make sure they understand the seriousness of what they have done. The images might be innocent, Boyles said, but they are child pornography.
Is it child porn?
Just because a nude image is found on a high schooler's iPhone, doesn't make it child pornography, Walczak said.
Real child pornography involves exploitation and abuse, Walczak said. If a boy forces his girlfriend to take naked pictures of herself, he said, that's child pornography. If an experimenting boy takes a nude photo of himself, it is not necessarily pornographic.
If a prosecutor were to take a sexting case to trial solely because a photo contained a naked teen, Walczak said, the prosecutor would lose, based on state law and U.S. Supreme Court rulings.
Boyles agreed that a nude photo alone doesn't constitute child pornography, but said it's not as simple as Walczak makes it sound.
A nude picture becomes child pornography when it's "for the purpose of sexual stimulation or gratification of one person," Boyles said.
"A girl sends a naked picture of herself to her boyfriend, there's only one purpose for that," Boyles said. "That's kind of a given, especially when you're dealing with hormone-ravaged teenagers."
Is it criminal?
On Tuesday, the state House judiciary committee voted to send Grove's bill before the full House.
Boyles and Grove both said the legislation would go a long way to help district attorneys -- like the one in Wyoming County -- who are trying to help kids that have done something very serious.
Grove said the court's decision to release its ruling one day after his bill cleared committee is a subtle signal to legislators that the judiciary needs more guidance in the area.
In clearing committee, the bill was amended, Grove said. Some of the wording was changed, but a provision was also added to ensure that teens couldn't be sent to a detention facility for sexting.
In the Wyoming case, girls who had taken photos of themselves in sports bras and bathing suits were told they could face prosecution. Grove said his bill would prevent prosecutors from charging teens for those types of photos.
The amendments are an improvement, Walczak said, but they don't go far enough. If the bill were to pass, too many teens would get prosecuted for non-criminal actions that create no victims, Walczak said.
"It's still too broad and we think it's vulnerable to constitutional challenge," he said.
Grove hopes the bill goes before the full House in the coming months. For it to become law this year, they would likely have to deliver it to the Senate by late summer, since the Senate won't return to session after the November election.
And if the committee deliberations were any indication, Grove said, there will likely be plenty of debate on the full House floor.
DISTRICT ATTORNEY'S SEXTING POLICY
After dealing with a number of sexting cases involving high school students across the county, the York County District Attorney's office created the following policy last year to deal with offenders. New District Attorney Tom Kearney has decided to continue the policy.
--- Any cellular phones in the possession of a juvenile found possessing child pornography will be seized. If the phones are voluntarily forfeited for destruction, no further sanction will be taken against the juvenile.
--- Any juvenile creating and disseminating the child pornography will have the cell phone seized and be referred to the Youth Aid Panel.
--- Multiple offenses will be dealt with on a case-by-case basis. ..Source.. JEFF FRANTZ
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