Thursday, March 26, 2009

Spurious threat of prosecution used to shame teens

District Attorney George P. Skumanick of Wyoming County, PA isn't content to hop on the bandwagon of prosecuting teens for taking and sharing smutty pictures of themselves and one another under the child pornography laws. No, he's decided to use his legal muscle to put the fear of God (or more accurately, prison) in teens over material that is indisputably legal. Fortunately, these teens did the right thing: called the ACLU, who are helping the youngsters and their parents sue the local prosecutor.

Here's what happened, from the New York Times:

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick.

They asked the court to stop the district attorney from filing charges against them, contending that his threat to do so was “retaliation” for the families asserting their First and Fourth Amendment rights to oppose his deal.

You go, girls. The ACLU of Pennsylvania's complaint (PDF) describes the content of the pictures:

One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.

I've posted about this topic before, and there's an excellent, excellent post about it over at Yes Means Yes!, so I'll just say a few things about this case.

First off, let's note that Skumanick threatened not only child porn charges but also charges of sexual abuse of a minor. The relevant Pennsylvania law makes it a second-degree felony to "knowingly photograph... a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act," including "nudity [that] is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Pa. Stat. Tit. 18 s 6312. The laws's plain language doesn't exempt minors from prosecution. But the plaintiffs have it right here: while the definition of nudity-for-the-purpose-of-sexual-stimulation is potentially broad, it clearly requires actual nudity, not just topless or underwear-clad pictures.

Second, for basically the same reason, it's patently clear that these girls' pictures wouldn't be "child pornography," but in fact would be fully protected by the First Amendment. Simply put, teens showing a little skin isn't a crime, or the Delia's people would be in big trouble. Indeed, the complaint alleges that:

The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them “provocative.”

Even baring your breasts doesn't make it "pornography," even if the local D.A. thinks it's "provocative."

No, this is a transparent case of a law enforcement official threatening prosecution for plainly legal, indeed constitutionally protected, material, in an attempt to shame and frighten kids away from ever engaging in such constitutionally-protected experimentation again.

Interestingly, the girls' mothers are suing on their own behalf too; the suit frames Skumanic's threats as a threat to parents' constitutional right to direct their children's upbringing and education by forcing them into "a re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl."

Finally, it strikes me as more than a little suspicious that Skumanic's spate of prosecutorial threats targeted girls by a 4:1 margin. I doubt this merely reflected which local students were taking, posing in, or passing around racy pictures. More likely, girls were targeted because the main point of the exercise was to enforce traditional notions of female modesty.