A NYTimes article published a few days after the Third Circuit Court of Appeals decision in Miller v. Mitchell (f/k/a Miller v. Skumanick) re-evaluates applying sex offender laws to teenagers who send nude pictures of themselves or others via cell phone, or sexting. The Third Circuit upheld the trial court’s order barring a state prosecutor from charging three teenage girls with pandering child pornography. Two of the girls, 13 years old at the time, were photographed from the waist up wearing bras, the third was photographed wrapped in a towel with her breasts exposed. The photos came to the attention of school official and the prosecutor as they were being passed around by local students. Prosecutor Skumanick deemed the photos sexually “provocative” and threatened the girls with felony charges unless they submitted to his self-designed “re-education” program. (Was this Republican official aware of how closely his tactics mirrored those of the Mao’s Red Brigade during China’s Cultural Revolution? Doubtful.) The girls’ parents sued to enjoin Skumanick’s crusade and the court ordered him to stand down, ruling that the girls and their parents were likely to succeed on their First and Fourteenth Amendment claims. The state appealed, and while the appeal was pending prosecutor Miller replaced Skumanick in office. Skumanick chose not to prosecute the boys trading the photographs because, as the state’s lawyer reportedly said in court, “high school boys did as high school boys will do.”
Teenagers have been doing dumb things, experimenting with sex, and combining the two forever. Now they can do all of the above online, in digital format. This week we discussed whether that qualitatively changes the legal implications. Student responses are mixed, but there’s broad agreement that typical sexting cases do not warrant child pornography charges. The Times story mentions an 18 year old boy on the sexual offenders’ registry in his state for sending a cell phone picture of his genitals to “a 14 year-old female friend who had requested it.” Bad judgment for sure; did it warrant the punishment? States are starting to decriminalize or redefine sexting to lessen the punishment. “Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.” An attorney quoted in the article said “[w]hile sexting is bad judgment, it’s simply not what the Supreme Court had in mind when it crafted the child pornography law. It just doesn’t make sense that in a lot of the sexting situations, the pornographer and the victim are one and the same person.” Criminal prosecution should be the last resort in most of these cases.