Inconsistent Pleadings: Town of Sexting Teens Not Also Hotbed of Kiddie Porn

by Ian Retford

In 2008, George Skumanick, then-District Attorney for Wyoming County, Pennsylvania, noticed an alarming problem, one that called for the immediate intervention of the local law enforcement apparatus: “rampant sexting.” This grave threat to rural Pennsylvania’s social order was brought to his attention by various Tunkhannock School District officials, who, after confiscating the phones of males and females in the Justin Bieber age cohort, discovered pictures of ladies in various stages of undress. Most of those stages involved bathing suits or bras, but apparently, if you looked at some of the pictures carefully (and the Tunkhannock school district officials definitely did), there was nipplage to be seen. For reasons that are not entirely clear (read: insanity), the school officials concluded that the pictures were a criminal justice issue and so they handed the phones over to District Attorney Skumanick.

Realizing that the shots implicated delicate issues of burgeoning female sexuality, Skumanick sent letters to the parents of the girls in the photos informing them that the girls would be brought up on child pornography charges if they refused to complete a multi-month counseling program. He reminded them that, if convicted, they would have to register as sex offenders under Pennsylvania’s version of Megan’s Law.

If you’re confused about (a) how a girl could be charged with child pornography for taking pictures of herself or (b) why it’s appropriate for a DA to threaten people with felony charges as a way to get them to take counseling classes, you’re in the company of basically every human being other than George Skumanick.

To help sort everything out, Skumanick called a meeting with the families a few weeks later. But the meeting cleared up exactly nothing. One parent asked how his daughter, who was wearing a bathing suit in the relevant photograph, could possibly be charged with a crime. Answer? She posed “provocatively” in the photo. When asked what the hell that meant, the face of law and order for Wyoming County responded, “[T]hese are the rules. If you don’t like them, too bad.”

By this point, Skumanick’s investigation had escalated, Crucible-style, and twenty kids were being accused of being wild child pornographer nymphettes. All but one refused to take the counseling class.

This is what was in store for that one student: a five-part class designed to give the girls “an understanding of what it means to be a girl in today’s society.” The course included, among other things, an essay on why the student’s actions were wrong, an investigation of negative portrayals of women in advertising, a module entitled “Gender Advantages and Disadvantages,” and the reading of Maya Angelou’s poem, “Phenomenal Woman.” (Basically, imagine a Judith Butler class, but taught in the 1950s, and by a police officer.)

Fearing that Skumanick would make good on his threat to bring child pornography charges if they didn’t submit to the counseling program, three of the girls and their parents filed suit against Skumanick in federal court. At issue were two photographs. In one, two of the girls (both 13 years old) are wearing white bras, one talking on the phone while the other makes a peace sign. This image might make a normal person think of goofy sleepovers, hairbrush microphones and general adolescent hamminess, but to Skumanick, the shot smacks of one thing: porn. This is even more true of the second picture, where the third plaintiff is seen, presumably emerging from the shower, with a towel wrapped around her, just below her breasts.

Whether these pictures constitute child porn under Pennsylvania law seems like a pretty easy question. But that’s a question of state law, and typically one that can be raised only in state court, and only after someone is actually charged with a crime. To prevent the charges from being filed in the first place, the girls needed to allege that any criminal prosecution would implicate federal Constitutional rights.

The plaintiffs focused on two rights that they claimed would be violated by the counseling program: the girls’ freedom of speech, and the parents’ right to direct the upbringing of their children. According to the plaintiffs, the former would be violated by forcing the girls to explain why their actions were wrong, and the latter would be encroached by allowing Skumanick & Co. to instruct the girls on “what it means to be a girl in today’s society.” In threatening prosecution if the girls didn’t take the class, the plaintiffs argued, Skumanick essentially punished the plaintiffs for refusing to agree to these Constitutional infringements.

Skumanick’s (non-)defense: “Every pedophile, every predator, waits with eager anticipation of that ruling. It is the interest of those pedophiles that is being advanced by [plaintiffs’ attorneys].”

The district court judge agreed with the parents and entered an order [PDF] forbidding Skumanick from filing child porn charges against the girls. Reinforcing my belief that the judiciary is the only consistently sane branch of government, the Third Circuit Court of Appeals on Wednesday upheld the trial court’s decision [PDF]. In the category of sentiments we can all get behind, the court held, “[A]n individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles.”

And: “’What it means to be a girl in today’s society,’ while an important sociological concern, in this case is [at] a disconnect with the criminal and juvenile justice systems.”

To make this story even sweeter, the voters of Wyoming County voted Skumanick out of office last November, after a 20-year stint as District Attorney. (You can visit his website — and please do — here.) So, yay, great, the end. Right?

Not exactly. The Third Circuit decision really only prevents crazy moralizing district attorneys from strong-arming kids into taking bizarre gender studies courses. And though we should all celebrate any time anyone escapes from reading a Maya Angelou poem, this doesn’t really address the underlying issue: whether sext images by teens can be treated as child porn.

Though the question remains unresolved, it’s doubtful we’ll see ourselves enmeshed in a national epidemic of teen sexting prosecutions. Public opposition is a pretty good check on prosecutorial zeal. And public opposition tends to express itself most fervently when the threat of prosecution hits closest to home. Most parents of teens and tweens would probably agree that embarrassment is punishment enough for racy photos, and that a prison sentence and a spot on the sex offender registry might be overdoing things. It’s the rare person who sees a teen in a bra and thinks, “hardened sexpot,” and as Skumanick’s fate suggests, if that person is a prosecutor, he’s probably not long for his job.

Ian Retford is the pseudonym of a lawyer in New York City.