ACLU Sues Prosecutor Over 'Sexting' Child Porn Charges

The American Civil Liberties Union is helping three teenage girls fight back against a Pennsylvania prosecutor who has threatened to charge the girls with felony child porn violations over digital photos they took of themselves.

In a federal lawsuit filed Wednesday in Pennsylvania, ACLU lawyers accuse District Attorney George P. Skumanick, Jr. (.pdf) of violating the civil rights of three girls. The lawsuit says the threat to prosecute the minors "is unprecedented and stands anti-child-pornography laws on their head."

The lawsuit comes in the wake of a string of cases around the country in which teens have been arrested on child porn charges for making and distributing nude and semi-nude photos of themselves.

At issue in the case are photos seized from student cellphones last year by officials of the Tunkhannock School District in Wyoming County, Pennsylvania. The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called "sexting" and has resulted in teens being arrested in a number of states under child porn production, distribution and possession charges.

One photo of Marissa Miller and Grace Kelly shows them two years ago at age 13 lying side by side while one talks on the phone and the other make a peace sign with her fingers. The two are photographed from the waist up and are wearing white opaque bras. A second photo shows a girl referred to in the court document as "Jane Doe" photographed outside a shower with a towel wrapped around her waist. Her breasts are bared.

Last year, Tunkhannock school officials discovered that male students had been trading the photos. Officials confiscated the phones and turned them over to county prosecutors who began a criminal investigation.

Skumanick then threatened to charge the three girls with producing child porn unless their parents agree to place them on a six-month probation and send them to a five-week, 10-hour education program to discuss why what they did was wrong and what it means to be a girl in today's society. The girls also must agree to subject themselves to drug testing.

Skumanick told an assembly of students that possessing inappropriate images of minors could be prosecuted under state child porn laws. Anyone convicted under the laws faces a possible seven year sentence and a felony conviction on their record. Under a state sex offender law, they must also register as a sex offender for 10 years and have their name and photo posted on the state's sex offender website -- the latter requirement will include juvenile offenders when the law is amended later this year.

Skumanick, who is running for re-election in May, also sent a letter to about 20 students who were found to be in possession of the images. In a meeting with students and their parents, he said he would file felony charges against the students unless they also agreed to six months of probation, paid a $100 fee and participated in an education and counseling program. Skumanick gave the parents 48 hours to agree to his terms or he'd file felony charges against their children. He later changed some of the terms and allowed parents a week to sign an agreement. The parents of the three girls facing felony charges refused to sign.

The ACLU of Pennsylvania is representing the girls and their parents. In its lawsuit -- filed in U.S. District Court for the Middle District of Pennsylvania -- the organization charges that the prosecutor violated the girls' First Amendment rights. The lawsuit says the photos do not constitute child pornography under Pennsylvania's criminal code since they depict no sexual activity and do not display the pubic area of the girls' bodies.

"Skumanick's threatened prosecution chills Plaintiff's First Amendment right of expression, causing them concern about whether they may photograph their daughters, or whether the girls may allow themselves to be photographed, wearing a two-piece bathing suit," the ACLU wrote.

The lawsuit also claims the demand that the parents agree to place their girls in a re-education program violates the parents' Fourteenth Amendment rights to direct the upbringing of their own children.

According to the ACLU filing, Skumanick told Miller's parents that the photo of their daughter constituted child pornography because she and her friend were posed "provocatively." When lawyers for the parents asked for a copy of the photos that would be used to charge their children, Skumanick reportedly refused on grounds that he would be committing a crime by sharing child porn.

Neither Skumanick nor the ACLU responded to calls for comment.