News

January 16, 2010

Was it goofing around or a crime?

Federal appeals court hears arguments on Wyoming County “sexting” case involving girls.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
Terrie Morgan-Besecker on Facebook   |   @TLTerrieMorgan on Twitter

PHILADELPHIA – To MaryJo Miller, the image of the two 12-year-old girls posing for the camera in their training bras was nothing more than kids goofing off at a slumber party.

Former Wyoming County District Attorney George Skumanick viewed the photo as something far more serious – an example of the growing problem of teenagers sending sexually explicit photos of themselves over their cell phones.

The debate over the photos landed before the Third Circuit Court of Appeals on Friday in what attorneys from both sides say will result in a precedent-setting ruling that could impact the prosecution of so called “sexting” cases nationwide.

The case stems from a court challenge that Miller and two other parents filed last year after Skumanick threatened to file child-pornography charges against their daughters. Photos of the partially clad girls and other females were discovered on the cell phones of some classmates at Tunkhannock Area High School.

The photos in question were taken three years ago and depicted Miller’s daughter, Marissa, and her friend, Grace Kelly, in their bras. Both girls were 12 at the time. The third photo depicted another girl, identified as Nancy Doe, 16, emerging from a shower, topless.

Skumanick’s attorney, Michael Donohue, argued Skumanick was properly exercising his prosecutorial discretion. The photos equated to child pornography because they were transmitted with the intent to provide sexual gratification to the recipient, Donohue said. Skumanick had offered not to charge the girls and others involved if they agreed to attend a sex-education program that would discuss the dangers of sexting.

“When he found out that kids in the district were circulating nude pictures of themselves, he was correct and appropriate in taking action to stop that,” Donohue said.

The juveniles’ attorney, Witold “Vic” Walczak of the American Civil Liberties Union, argued Skumanick’s philosophy could set a troubling precedent. Child pornography laws are meant to protect children from sexual exploitation and abuse, he said. By charging the girls, he would be turning victims into criminals.

“If he has evidence of sexual abuse and exploitation, why is he charging her?” Walczak said, referring to the Nancy Doe case. “She is the victim.”

That issue seemed of particular interest to the three-member panel that heard the case: Judges Thomas Ambro, Michael Chagares and Walter Stapleton.

“You are saying you can bring an action for sexual abuse of a minor if the minor themselves transmitted a picture of themself?” Ambro asked Donohue.

“If the transmission was for sexual gratification, yes,” Donohue said.

Ambro said he was concerned that Skumanick was “flipping” a law meant to protect children by using it to prosecute them.

“If the goal is to protect children, then why threaten them with prosecution that could put a permanent blotch on them for life?” Ambro asked.

Donohue acknowledged that children involved in sexting could be viewed as victims as well as perpetrators. He said those who knowingly transmit sexually explicit photos have to be held accountable for their actions because it harms not only them, but other children who are put at risk.

“When a kid disseminates a picture of themself, it puts themself and other children at risk,” Donohue said. “An image of naked children draws predators like a swamp draws mosquitoes.”

Miller, 45, was the only parent involved to attend the hearing. Speaking after the hearing, she said she does not condone sexting. She said she has pressed on with the case because she believes strongly that neither her daughter nor Kelly did anything wrong.

“I thought they were goofballs,” Miller said of her reaction when she first saw the photo of the girls, which was taken when they were at a slumber party. “There was nothing wrong with that photo . . . You’re going to see more provocative photos in a Victoria’s Secret catalogue.”

The panel took the case under advisement and will issue a written opinion at a later date.

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