1-19-2010 Pennsylvania:
As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.
The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.
"I don't know of anything that says a district attorney's office is allowed to, in effect, play the role of teacher," Judge Thomas L. Ambro said.
But attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., argued that Skumanick was right to take the cases seriously when school officials informed him of a rash of sexting incidents, and that each of the students had the option to refuse the class and "face the music" in a juvenile court proceeding.
Skumanick, who was seeking his sixth term as Wyoming County DA, lost to Tunkhannock attorney Jeff Mitchell, the Democratic candidate.
The American Civil Liberties Union of Pennsylvania filed the suit, Miller v. Skumanick, on behalf of three girls who refused to take the class.
In March 2009, U.S. District Judge James M. Munley of the Middle District of Pennsylvania sided with the ACLU and issued an injunction that blocked Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected speech under the First Amendment.
In the appellate argument Friday, Donohue argued that Munley's injunction was an extraordinary instance of federal court interference in an ongoing state court criminal case.
But early on, Donohue was fielding a barrage of aggressive questions. Judge Walter K. Stapleton focused on Munley's finding that the prosecutor lacked probable cause to prosecute any of the girls because of the tame nature of the photos.
Donohue said the prosecutors have now agreed that they would never prosecute two of the girls because the images showed them in bras. But the third girl, who was topless in two images, could be prosecuted, he said.
Stapleton suggested that even the topless images could never amount to probable cause for a child pornography charge.
"If you had probable cause here, you'd have a different case, but all you've got is a picture of somebody partially naked and two years later it turns up on somebody's cell phone at school," Stapleton said.
Donohue said the school's investigation showed that the plaintiff and 20 other girls had transmitted such images to their classmates, and that "the boys, as they are wont to do, were trading the pictures among themselves."
But Ambro focused on the constitutional rights in the case and asked if Skumanick's education program -- delivered with the threat of a prosecution -- had intruded on the rights of the girls' parents or amounted to improper "compelled" speech by the girls who would have been forced to write an essay admitting they were wrong to engage in sexting.
Donohue insisted that all such "informal adjustments" that avoid prosecutions include similar confessional requirements.
But Judge Michael A. Chagares homed in on the segment of the class in which the girls were to be taught "what it means to be a girl in today's society."
Donohue insisted that the class had a six-page curriculum that mostly focused on avoiding sexual predators.
"Naked pictures of children, disbursed on the Internet, draws predators the same way as a swamp draws mosquitoes," Donohue said.
Ambro wasn't satisfied and asked: "Should we allow the state to force children, by threatening them with prosecution, to attend education programs expounding a particular government official's views of what it means to be a girl in today's society?"
Donohue insisted that the program was a proper response to a rash of incidents in which girls had transmitted nude photos of themselves for no other purpose than sexual gratification.
"Children are immature, children are vulnerable. The entire basis of the juvenile code is to protect children from themselves," Donohue said.
"If that's your goal -- to protect them -- then why threaten, by prosecuting them, putting a permanent blot on their escutcheon, for life?" Ambro asked. ACLU legal director Witold Walczak told the judges "what we have here is a district attorney's office that has a fundamental misunderstanding of child pornography laws."
But Walczak, too, was peppered with some tough questions as the judges pondered whether the ACLU's approach, and Munley's injunction, were legally sound.
Walczak urged the judges to focus, as Munley had, on the nature of the images.
"You don't have pubic area much less genitalia exposed here," Walczak said. "We've been mystified as to how anyone could look at these two photos and say these are second-degree felonies, which can be punished up to 10 years."
Sexting "is a vague term," Walczak said, that "covers everything from the lovely to the laughable to the lewd and the lascivious."
But when Ambro asked if the decision to prosecute should be left to the district attorney, Walczak insisted it should not because prosecutors have no right to threaten charges where there is no probable cause and where the images are constitutionally protected.
Chagares said the court might be inclined to agree with Walczak about the education program, but asked: "Should we be serving as a screening mechanism for sexting cases -- or any other kind of cases?"
Walczak said he believed the federal courts "should stand as a bar to any state official who is imminently violating or threatening to violate somebody's constitutional rights -- and that's what Judge Munley did in this case." ..Source.. Shannon P. Duffy, The Legal Intelligencer
January 19, 2010
3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography
January 14, 2010
'Sexting' Case to Take Center Stage at 3rd Circuit
1-14-2010 Pennsylvania:
A federal appeals court on Friday takes up the growing practice of "sexting" -- in which teenagers transmit nude and semi-nude photos of themselves and others by phone -- as the judges tackle the vexing question of whether such images can be deemed child pornography.
The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County, Penn., girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.
The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.
After a wave of sexting was discovered among students in Pennsylvania's Tunkhannock Area School District, Skumanick targeted 13 girls and three boys. Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the American Civil Liberties Union to challenge the threatened prosecutions.
In March 2009, U.S. District Judge James M. Munley sided with the ACLU and issued an injunction that blocked Skumanick from bringing the charges, declaring that the photographs were not child pornography under Pennsylvania law and were therefore protected under the First Amendment.
Now Witold J. Walczak, the legal director of the ACLU of Pennsylvania, will be urging the 3rd U.S. Circuit Court of Appeals to uphold the injunction, while attorney Michael J. Donohue of Kreder Brooks Hailstone in Scranton, Pa., urges the court to overturn it.
In an amicus brief, attorneys Marsha L. Levick and Riya S. Shah of the Juvenile Law Center side with the ACLU and its plaintiffs, arguing that "sexting prosecutions are an abuse of prosecutorial discretion and are inconsistent with the juvenile act's purpose of providing rehabilitation and treatment."
Levick and Shah argue that sexting "represents the convergence of technology with adolescents' developmental need to experiment with their sexual identity and explore their sexual relationships."
Child pornography laws, Levick and Shah argue, "are intended to protect victims and prosecuting sexting as child pornography is inconsistent with the stated purpose and legislative intent of these laws."
The 3rd Circuit panel is composed of Judges Thomas L. Ambro, Walter K. Stapleton and Michael A. Chagares.
In the brief for Skumanick, Donohue argues that the injunction "represented an unwarranted and illegal intrusion into the juvenile justice system of Wyoming County."
Donohue argues that Skumanick was faced with a situation where "provocative photographs of nude and semi-nude adolescent girls" were being sent to students.
"In his prosecutorial discretion, he was attempting to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous," Donohue wrote.
Donohue argues that the federal courts "should be extremely hesitant and deferential in intervening in prosecutorial discretion in the criminal courts of the states."
But Walczak, who was joined on the brief by ACLU attorneys Sara J. Rose, Valerie A. Burch and Mary Catherine Roper and University of Pennsylvania law professor Seth F. Kreimer, argues that Munley's injunction was legally sound because Skumanick never had probable cause to charge any of the plaintiffs under child pornography laws.
The ACLU's brief says the three plaintiffs appeared in "innocuous digital photos topless or clad in underwear."
Under Pennsylvania law, Walczak argues, "the photos could not be considered child pornography in terms of their content or context."
Pennsylvania law also "regards minors portrayed in pictures as victims rather than perpetrators," Walczak argues, and an image created by the minor herself carries none of the same concerns about victimization.
As a result, Walczak argues that the images "could not be criminalized without running afoul of the First Amendment," and that Skumanick's threat to file charges "was baseless and was made only to coerce the girls to participate in a re-education program of his design."
Walczak argues that the girls had "a constitutional right to refuse to participate" in such a program.
"The girls have a First Amendment right not to be forced to mouth the views that Skumanick believes appropriate for 'girls in today's society' and their parents have a 14th Amendment right to direct their daughters' education, which includes the right not to subject them to a program that reflects Skumanick's views of what it means to be female in today's society," Walczak wrote.
As a result, Walczak argues, Munley "correctly concluded that under the circumstances Skumanick's threat to file baseless criminal charges against the girls, unless they and their parents acceded to his demands, represented unconstitutional retaliation." ..Source.. Shannon P. Duffy, The Legal Intelligencer
September 24, 2009
IA- Sexting teen ends up on sex offender registry
At the stroke of midnight, a boy becomes a man, and is held to a different standard. Unfortunately, his manual makes no mention of that moment or the responsibilities that attach to manhood. One would think that, those who are adults (Judges) and allegedly have wisdom, would recognize that -stroke of midnight moment- and make decisions that do not destroy lives.. But,.... Would they if it were their own?
9-24-2009 Iowa:
The Iowa Supreme Court has sent a strong message about "sexting."
Sexting is the practice of sending nude or semi-nude photos through cell phone text messages. Pat Trueman, special counsel for the Alliance Defense Fund, says the most recent ruling stemmed from a 2005 case involving 18-year-old Jorge Canal.
"This was a serious offense. He was producing obscenity and distributing obscenity, and to a minor at that," he notes.
The girl receiving the pictures was 14 years old. Canal's attorney appealed a jury verdict to the Iowa Supreme Court, and the court agreed that the pictures involved obscenity and upheld the decision. Canal received probation.
"But he also has to register as a sex offender -- and [he] may be on that sex offender registry for a lifetime," Trueman adds. "So if anyone had any doubts, sexting is a very serious crime -- and kids better get to know that."
The court concluded that even though the girl asked for the pictures, Canal still had a legal obligation not to send them. ..Source.. by Charlie Butts - OneNewsNow
September 19, 2009
IA- Iowa court upholds 'sexting' conviction
9-19-2009 Iowa:
The Iowa Supreme Court upheld the misdemeanor conviction Friday of a teenager who sent a text message photo of his erect penis to a 14-year-old female classmate.
_____. was 18 when he sent the pictures of his penis and his face, with the words "I love you," in May 2005. The practice, known as "sexting," has triggered controversy in other parts of the country.
_____ and the girl both attended Perry High School and had known each other as friends for roughly a year, according to the ruling. The girl, identified by initials C.E., testified that she asked _____ to send the photo three or four times, as a joke, and not to excite any feelings.
The photo was later discovered by C.E.'s mother, who showed it to her husband, a former reserve police officer. Police charged _____ with knowingly disseminating obscene material to a minor.
"This should be a warning to young people who want to engage in this sort of conduct," said Theresa Wilson, _____'s court-appointed lawyer. "Even though it may be between friends, people can still be held responsible."
A Dallas County jury later convicted _____, and a judge granted him a deferred judgment with a $250 fine and one year of probation. _____ also was required to register as a sex offender.
He appealed his conviction, but the Iowa Supreme Court denied the claim because he had received a deferred judgment. _____ then violated his probation, which caused the deferred judgment to be revoked and required a 90-day jail sentence.
____ argued in his appeal that prosecutors lacked sufficient evidence to convict him, and claimed that his lawyer did not do an adequate job. He argued that the photo did not meet the legal definition of obscenity.
The high court rejected the claims. To qualify as obscene, photos must be "patently offensive" and appeal to a "prurient interest" with no serious literary, scientific, political or artistic value, Justice David Wiggins wrote.
The district court judge "effectively instructed the jury that mere nudity does not constitute obscenity," Wiggins wrote.
The decision to uphold _____'s conviction was unanimous except for Justices Michael Streit and David Baker, who did not participate in the case.
Bob Brammer, a spokesman for the state attorney general, said he was unaware of any other "sexting" appeals court cases in Iowa. In January, six high school students in Pennsylvania were arrested on child pornography charges after three teenage girls allegedly sent nude or half-nude photos of themselves to male classmates using cellphones.
_____, now 23, lives in Perry and is still listed on the state's Sex Offender Registry.
His conviction is a serious misdemeanor punishable by a fine between $315 and $1,875, and a maximum one-year prison sentence. ..Source.. by Grant Schulte
