ALLENTOWN, Pa.—A U.S. appeals court ruled Wednesday that a northeastern Pennsylvania prosecutor may not pursue felony charges against a teenage girl who appeared in a racy cell-phone photo.
In the first criminal “sexting” case to reach a federal appeals court, the Philadelphia-based 3rd U.S. District Court of Appeals ruled against Wyoming County District Attorney Jeff Mitchell, whose predecessor had threatened to pursue felony charges against the girl unless she agreed to participate in a diversionary program and write an essay explaining what she did and why it was wrong.
That violated the teen’s constitutional right to be free from compelled speech and infringed on her parents’ right to direct her upbringing, the court said.
The district attorney also had no evidence that the teen was involved in the photo’s distribution, the court said.
The image, which wound up on students’ cell phones, showed the 16-year-old girl just out of the shower and topless, with a towel wrapped around her waist. It surfaced in October 2008, when officials at Tunkhannock Area High School confiscated five cell phones and found that boys had been trading photos of scantily clad, seminude or nude teenage girls. The students with the cell phones ranged in age from 11 to 17.
Then-District Attorney George Skumanick met with about 20 students and their parents and offered them a deal in which the youths wouldn’t be prosecuted if they took a class on sexual harassment, sexual violence and gender roles. Seventeen of the students accepted the offer, but three balked and sued Skumanick.
The two other girls who had filed suit had appeared in a photo showing them at age 12 in training bras at a sleepover. The district attorney’s office recently said it would not press charges against the girls, making their claims before the appeals court moot.
In Wednesday’s ruling, the court agreed that the prosecutor’s threat to charge the topless teen was “retaliation” for her refusal to participate in the class. The panel issued a preliminary injunction against Mitchell and sent the case back to a lower court.
“I think the important message for prosecutors is that there are constitutional limits on their ability to bring criminal charges against kids involved in sexting,” said Witold Walczack, legal director of the American Civil Liberties Union of Pennsylvania, which represents the teens.
Mitchell said Wednesday no decision has been made on whether to continue with the case.
He said he’s disappointed “to the extent that the decision appears to limit the discretion a district attorney has when faced with a criminal case, or a juvenile case.”
Skumanick could have authorized criminal charges from the outset, but instead sought an alternative way to discourage teens from exchanging sexually explicit photos and e-mails on their cell phones.
“What’s ironic about this case is the district attorney got penalized for being too nice,” he said.
Under Pennsylvania’s child pornography law, it’s a felony to possess or disseminate photos of a minor engaged in sexual activity, “lewd exhibition of the genitals” or nudity that is meant to titillate.
A bill moving through the state House would make sexting a less serious offense for teenagers than for adults. Under current law, minors who send sexually explicit photographs from one cell phone to another could be convicted of a felony.