A federal court rebukes a district attorney who cracked down on three girls over seminude photos.

The new world of online cruelty.
March 18 2010 6:57 PM

How Not To Prosecute a Sexting Case

A federal court rebukes a district attorney who cracked down on three girls over seminude photos.

George Skumanick should give lessons in how not to respond to teenage sexting if you work in law enforcement. The former district attorney for Wyoming County in rural Pennsylvania did just about everything wrong when, in 2008, local school officials turned over to him photos of teenage girls that boys were trading on their cell phones. Skumanick didn't try to determine whether the girls had been harmed by the sexts. Instead, he called the girls in and threatened to prosecute them for child pornography unless they attended a six-to-nine-month "education and counseling" program of his own devising.

On Wednesday, the U.S. Court of Appeals for the 3rd Circuit stopped Skumanick's ill-advised plan. The court's opinion doesn't go as far as it might have in rejecting Skumanick's approach of treating the sexting as potential child porn. But it's still a welcome judicial check on prosecutors who overstep their bounds when confronted with a girl's breasts on a cell phone screen.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Illustration by Deanna Staffo. Click image to expand.
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The oddest thing about Miller v. Mitchell, as the girls' lawsuit against the district attorney's office was renamed after Skumanick lost his bid for re-election last November, is that the sexts were barely sexy. Two of the girls were photographed in white bras—one was talking on the phone; the other was making a peace sign. At the meeting Skumanick called with the girls and their parents, the mother of one said the kids were just being "goofballs" and asked how the photos could constitute child pornography. The district attorney said the girls were posing "provocatively." Skumanick later folded—his only sensible move in the case—by agreeing not to bring charges against these two girls. That left a third 16-year-old girl, called Nancy Doe in the court's opinion, whose photo showed her wrapped in a towel, with her breasts showing, "appearing as if she just had emerged from the shower."

It's possible that such a photo, in the hands of jeering boys, could cause a girl trouble. Just think about all the things guys that age have to say about the size and shape of someone's breasts and how easy it is to get called a slut. But that wasn't Skumanick's focus. The district attorney threatened only the girls with the child porn charges; he took no parallel action against the boys. (In describing the case at oral argument before the 3rd Circuit, Skumanick's lawyer dismissed the question of how the photos were circulated with an airy, "high-school boys did as high-school boys will do and traded the photos among themselves.") Nancy, meanwhile, was told by Skumanick that she would be charged with a felony—one that entails registering for life as a sex offender in Pennsylvania, according to the ACLU—unless she obediently went through his re-education program. This included writing a report about why what she did was wrong and learning, from the district attorney's office, "what it means to be a girl in today's society."

Nancy's parents (along with the parents of the other two girls, who at the time weren't off the hook yet) refused to send their kids to Skumanick's classes and sued to stop him from prosecuting the girls. They argued that the district attorney was interfering with their constitutional right to direct their children's upbringing and violating the girls' First Amendment right protecting against compelled speech by requiring that they write essays about how they'd done wrong.

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