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Sexting, and What it Means to be a Girl

Christopher Keelty,
ACLU of Pennsylvania
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January 20, 2010

On January 15, the U.S. Court of Appeals for the 3rd Circuit heard arguments in Miller, et al. v. Skumanick, a child pornography case that, oddly, involves no child pornography. The case goes back to 2006, when two girls aged 12 were photographed by another friend on her digital camera. The two girls were depicted from the waist up, wearing bras. In a separate situation, our third client was photographed as she emerged from the shower, with a towel wrapped around her waist and the upper body exposed. Neither of the photos depicted genitalia or any sexual activity or context. In 2008 the girls’ school district learned that these and other photos were circulating, confiscated several students’ cell phones, and turned the photos in question over to the Wyoming County district attorney, George Skumanick, Jr.

Skumanick sent a letter to the girls and their parents, offering an ultimatum. They could attend a five-week re-education program of his own design, which included topics like “what it means to be a girl in today’s society” and “non-traditional societal and job roles.” They would also be placed on probation, subjected to random drug testing, and required to write essays explaining how their actions were wrong. If the girls refused the program, the letter explained, the girls would be charged with felony child pornography, a charge that carries a possible 10-year prison sentence.

Nineteen families received these letters. Sixteen consented to re-education. Three decided their girls would benefit more from a lesson in constitutional law than from Skumanick’s views on “‘what it means to be a girl in today’s society,”‘ and called the ACLU of Pennsylvania. In March 2009, a federal judge granted a temporary restraining order preventing Mr. Skumanick and the Wyoming County, Pa., district attorney’s office from going ahead with any prosecution. Now it falls to the Court of Appeals to decide whether the DA’s office (Skumanick lost his bid for re-election in November) can proceed with prosecution.

This case has branded as the “‘Sexting Case,”‘ and headlines ask questions like “‘Sexting: Child porn or child’s play?“‘ But this case has nothing to do with sex, and nothing to do with pornography. This is a case of a government official using the law to force his personal morals on others. Last February, Skumanick told a group of students and parents that he had the authority to prosecute a girl for being photographed in a bikini on a beach, because the photo was “provocative.” In their brief to the 3rd Circuit, the DA’s office asserts their opinion that no person could exchange such photographs for any other reason except sexual gratification. Their attorney reasserted this right before the court, stating that a minor’s transmission of any photograph of herself containing any nudity is never protected under the First Amendment.

Even if the photographs in question could be construed as pornographic, Skumanick lacked any evidence that the girls had transmitted the photos. His only basis for probable cause, in the words of their attorney, was “‘the presence of [those] photographs on the cell phones of [their] classmates.”‘ It was this lack of probable cause that led to the initial restraining order.

Interestingly, none of the classmates who distributed the photos received letters from Skumanick. Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, “high school boys did as high school boys will do, and traded the photos among themselves.”

Ultimately, that’s what this case comes down to: one man’s view on how a young woman should conduct herself. The boys who traded the photos bear no responsibility and require no re-education. Instead the girls are threatened with felony charges and life-long registration as sex offenders. To apply such a penalty, designed to protect minors against exploitation, is a grotesque misapplication — and that’s once again assuming that the photographs in question could possibly be construed as pornographic. In reality, there was no way such charges would ever stick, and the DA’s office had to know this. The child porn charges were merely a threat, to force the parents to subject their children to Skumanick’s moral view of the world, where any and all child nudity is illegal and bras and bikinis are pornographic.

Instead these parents asserted their constitutional right to dictate the upbringing of their children; their right to say “‘we don’t think this was wrong, and we’re not forcing our children to put that in writing, and we’re not forcing them to attend your re-education session,”‘ without fear of retribution from the DA’s office. It is certainly important, in this era of Facebook and Twitter and text messaging, that children learn the consequences of sharing digital photographs of themselves, but as ACLU of Pennsylvania legal director Witold Walczak puts it, “prosecutors should not be using heavy artillery like child-pornography charges to teach that lesson.”

The DA’s office argues that the federal court had no place issuing a restraining order, and that the proper procedure would have been to allow the prosecution to go forward and for the girls to mount a constitutional defense against the charges — but the prosecution itself was the threat. The agony of a felony prosecution, of hiring attorneys and mounting a defense, of the media attention surrounding the prosecution of a 16-year-old girl as a child pornographer were, in Walczak’s words, “the Sword of Damacles,” the threat of retribution if these parents refused to turn their children over to Skumanick.

The central question of this case was perhaps best framed by Judge Thomas L. Ambro during 3rd Circuit arguments: “Should we allow the state to force children, by threat of prosecution, to attend a session espousing the views of one particular government official on what it means to be a girl?”

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