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US judge bars teen 'sexting' charges

Provocative is as provocative does

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A federal judge has temporarily barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls who took nude or semi-nude pictures of themselves.

The decision is the latest wrinkle in a nationwide phenomenon known as "sexting," in which teenagers armed with cell phones photograph themselves in various states of undress and zap the images to world+dog. Over the past 18 months, cases have popped up with increasing frequency in which juveniles accused of engaging in the practice are threatened with felony prosecutions under tough child-pornography statutes.

The three girls in this case were threatened with prosecution for two pictures, one that showed two of them in bras and one depicting a girl getting in the shower with her breasts bared. Prosecutors with Pennsylvania's Wyoming County District Attorney's office promised to dismiss any charges if the girls attended a "re-education" program that included nine months of classes and six months of probation.

The girls' parents sued in federal court, arguing that because the pictures weren't obscene and didn't depict sexual acts, they were protected by the US Constitution. In a preliminary decision, the judge hearing the case sided with the parents and temporarily blocked prosecutors from filing charges.

"While the court emphasizes that its view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts," US District Judge James M. Munley wrote. "Even if they were such depictions, the plaintiffs argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one."

Two of the three girls attended a slumber party two years ago where, according to the ruling, they were photographed from the waist up, each wearing a white, opaque bra. They were 13 at the time. One of the girls, Marissa Miller, was talking on the phone while the other, Grace Kelly, flashed a peace sign. George Skumanick, district attorney for Pennsylvania's Wyoming County, declared the photo was "provocative."

A separate photo of the third girl, whose name was kept secret, showed her wrapped in a towel that extended to just below her breasts.

The pictures were found when several student cell phones were confiscated by Tunkhannock, Pennsylvania School District officials. When images of "scantily clad, semi-nude and nude teenage girls" were discovered, they were turned over to county prosecutors, who told the girls they needed to attend the re-eduction classes or face prosecution.

The lawsuit argues that the threat of prosecution is barred under the US Constitution because it amounts to retaliation for engaging in free expression protected under the First Amendment. It goes on to claim the relevant Pennsylvania statutes apply only to pictures depicting a "prohibited sexual act," a definition not met by the two images in question.

A hearing for a longer-term preliminary injunction is scheduled for June 2. Skumanick, who has been in office for two decades, is up for re-election in June.

The case is a potent reminder of the tremendous amount of discretion given to prosecutors in deciding who gets charged and how.

According to the decision, Skumanick threatened to charge one girl who posed in a picture wearing a bathing suit because he found it "provocative." When the girl's father, attending a meeting with other parents with children swept up in the dragnet, asked who got to decide what provocative meant, the prosecutor refused to answer and reminded the attendees their children could be charged that very night. ®

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