How Not To Prosecute a Sexting Case
A federal court rebukes a district attorney who cracked down on three girls over seminude photos.
The district court ruled for the girls and their parents, issuing a temporary restraining order that stopped the prosecution and the re-education. A three-judge panel for the 3rd Circuit upheld that ruling this week. The parents' constitutional right to raise their children free of state interference extended to refusing the district attorney's program, the court found. Unlike a school district, his office has no secondary responsibility for educating kids, and so, the court said, he "may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles." The kids' free speech rights also prevented him from threatening prosecution if they refused to do what he asked them. The court pointed to a "disconnect" in an effort by the criminal justice system to instruct on the meaning of gender, which is hardly its job.
The three-judge panel also said that that district attorney had no probable cause to charge Nancy, because Skumanick had no evidence that she possessed or distributed the photo—which, after all, was found not on her cell phone but on the phones of her classmates. This part of the ruling signals to girls (or boys) who are the object of sexts that they won't be prosecuted simply for having their photo snapped—which is important for persuading them to come forward, as Nancy Willard of the Center for Safe Internet Use has pointed out.
The court did not, however, weigh in on the question of whether teens who take nude or seminude pictures of themselves are creating child porn in the first place. The ACLU urged that position in representing the girls and their parents. But the 3rd Circuit clearly wasn't ready to take such a stance. This wasn't surprising, "given that courts are reluctant to decide issues they don't have to rule on," said Witold Walczak, legal director for the ACLU of Pennsylvania. "But the case doesn't resolve any of the looming constitutional questions implicated by sexting prosecutions." Questions like whether boys who trade photos in a case like this one should be prosecuted, and for what. Should states write statutes with lesser penalties for teenagers to keep them off sex registries? Or should they leave law enforcement out of the disciplinary picture in cases like these? More here on this larger fight going on in several states.
In the end, George Skumanick is such an outlier that his loss on appeal won't mean all that much in terms of setting precedent. Other prosecutors can find ways to be hard-charging about sexting. The problem for the court here was the retaliation for not attending the education program, after all, not the idea of the prosecution in itself. But as organizations like the National District Attorneys Association back away from harsh reprisals against teens who sext in most contexts, the 3rd Circuit's ruling has a like-minded ring of sanity. A girl who poses in her bra while making a peace sign, or whose photo is snapped while she's coming out of the shower in a towel, shouldn't have to sit in class for months while a prosecutor's office schools her on female identity. Or anything else.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Illustration by Deanna Staffo.