SCRANTON, PA - The American Civil Liberties Union of Pennsylvania filed a lawsuit today against the Wyoming County district attorney for threatening three high school girls with child pornography charges over digital photos in which they appear topless or in their underwear. The district attorney has demanded that in order to avoid the charges, the girls be placed on probation, participate in a five-week re-education program and be subject to random drug testing. The photos were among several discovered by Tunkhannock School District officials on students' cell phones.
"Kids should be taught that sharing digitized images of themselves in embarrassing or compromised positions can have bad consequences, but prosecutors should not be using heavy artillery like child-pornography charges to teach them that lesson," said Witold Walczak, Legal Director for the ACLU of Pennsylvania. "These are just kids being irresponsible and careless; they are not criminals and they certainly haven't committed child pornography."
"Sexting," the practice of sending nude or semi-nude photos of oneself via cell phones or posting them on the Internet, has become increasingly widespread among teenagers. A recent survey found that approximately 20% of all teenagers have sent or posted nude or semi-nude pictures of themselves. (Sex and Tech: Results from a Survey of Teens and Young Adults, National Campaign to Prevent Teen and Unplanned Pregnancy, December 2008).
At issue in this case are two photos depicting three teenage girls. One shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym used to protect the girl's real identity) standing outside a shower with a bath towel wrapped around her body beneath her breasts. Neither of the two photos depicts sexual activity or reveals anything below the waist.
The district attorney has asserted that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed. The district attorney has not, however, threatened to charge the individuals who distributed the photos.
"Child pornography is a terrible crime that involves the abuse and exploitation of children, neither of which exists here," said Walczak. "In many states these charges would land these kids on Megan's Law databases, with their pictures on Internet registries for ten years or more, and prevent them from getting many types of jobs. That's a heck of a lesson for a kid who probably doesn't even realize she is doing something wrong."
The photos came to light in October 2008, when school district officials confiscated several students' cell phones, examined them and discovered that they contained photographs of scantily clad, semi-nude and nude teenage girls, many of whom were enrolled in the district. The school turned the photos over to the district attorney, George Skumanick, Jr., who began a criminal investigation into the matter.
In February 2009, Skumanick sent a letter to the parents of approximately twenty Tunkhannock students, including the ACLU's clients, threatening the students with criminal felony charges if they did not agree to be placed on probation and participate in a counseling program he devised. A course outline indicates that the program will help the girls "[g]ain an understanding of how [their] actions were wrong," "gain an understanding of what it means to be a girl in today's society," and "[i]dentify non-traditional societal and job roles."
The letter apparently was sent only to those who were discovered with the photos on their cell phones and the girls shown in the photos - not the students responsible for distributing the photos. The district attorney told a group of parents and students in February that he has the authority to prosecute girls photographed in underwear, like the ACLU's clients, or even in a bikini on the beach, because the photos are "provocative."
The ACLU charges in its lawsuit that Skumanick is misusing his authority by threatening to bring baseless child-pornography charges in order to coerce parents into sending their children to the re-education program and putting them on probation. The lawsuit claims this is a form of unconstitutional retaliation against the parents and children who assert their right not to be bullied into participation. The ACLU is asking the federal court to issue an order prohibiting the district attorney from filing criminal charges against the girls.
The plaintiffs are represented by Walczak, Sara Rose and Valerie Burch, staff attorneys with the ACLU of Pennsylvania, and Seth Kreimer, a professor at the University of Pennsylvania School of Law.
A hearing in the case has been scheduled for 1:30 p.m. on Thursday, March 26, before Judge James Munley in US District Court in Scranton, PA.
More information about the case, including a copy of the complaint, can be found at: www.aclupa.org/miller
