A cute moniker for a widespread, toxic phenomenon, “sexting” refers to teenagers sending nude or semi-nude pictures of themselves or other youths to friends’ cell phones or posting these photos on social Web sites like MySpace and Facebook. Although young people have always behaved in risky and impulsive ways, modern technology has seriously upped the ante for doing so. Momentary recklessness can result in mammoth embarrassment and grave damage to reputation: Images virally spread on the Internet carry the potential to scuttle college admissions prospects or job opportunities years later. As if such blighting consequences did not constitute punishment enough for indiscretion, some prosecutors have hit upon the brilliant idea of criminalizing immaturity — filing “kiddie porn” charges against the youngsters involved in this type of conduct. Instead of grandstanding, often at the victims’ expense, they ought to focus on bringing to justice the grown-up perverts the legislators meant to target.
Recent juvenile defendants include a 14-year-old New Jersey girl who posted naked pictures of herself on MySpace so that her boyfriend could view them; four Alabama middle-school students who exchanged nude photographs of themselves; and a 16-year-old New York youth who forwarded a nude photo of his girlfriend to other friends. The latter faces up to seven years in prison because a Rochester prosecutor regards a teenage cad as a felon!
An especially egregious case of overreaching arose in Tunkhannock, Pa. Last December, a high school girl became upset when she observed her nude picture on a boy’s cell phone. School authorities took the phone and summoned police, who called in George Skumanick Jr., the longtime local district attorney; meanwhile, the school had uncovered more phones containing images of scantily clad or naked girls. Unfortunately, the DA’s entry into the fray converted an event that teachers and parents might have used to expose the negative effects of sexting into a most unwelcome lesson on the evils of prosecutorial abuse.
Adopting a highly aggressive stance, Skumanick announced potential charges of possessing or distributing child pornography, felonies that could subject the youths to long prison terms, a permanent record and registration for at least 10 years under Pennsylvania’s “Megan’s Law,” meaning that their names and pictures would be displayed on a Web site of sex offenders. Ultimately, he wrote to the parents of approximately 20 teens: the phones’ owners and the girls whose images had been displayed — ludicrously viewed as criminal accomplices — but not the photos’ disseminators. He promised to drop the prosecutions if the youngsters successfully completed a six- to nine-month re-education and counseling program costing $150 (later reduced to five weeks and $100); it required writing an essay on why what the students did was wrong. This “informal adjustment” also entailed a half-year of probation with drug testing — even though none of them had been accused of illegal drug use. Failure to accept the proffered “carrot” would lead to the “stick,” the draconian sanctions Skumanick had threatened.
Virtually all the teens and parents caved in to the pressure. Notably, at least one teen had merely posed in a swimsuit in a way Skumanick deemed “provocative.” When asked by a father, “Who got to decide what ‘provocative’ meant?” he replied essentially that he made the rules.
But three of the girls and their families decided to resist the arrogant DA. Marissa Miller and Grace Kelly had been photographed from the waist up, each wearing a white opaque brassiere (Miller described hers as “like an old grandma bra”); a third, “Nancy Doe,” was shown clad in a towel wrapped under her naked breasts. They and their mothers sued in federal court to enjoin their prosecution as unconstitutional. They alleged that Skumanick was retaliating against them: the minors, for asserting their First Amendment right to free speech (appearing in non-obscene photos) and against compelled expression (writing the essays); the parents, for exercising their 14th Amendment right to direct the upbringing of their children (whom they did not wish to expose to the DA’s brand of re-education).
On March 30, the court granted preliminary relief to the plaintiffs, finding that they had shown a reasonable probability of success on the merits. Although unwisely appealing the order, Skumanick has said that he will not be bringing charges against anyone but Nancy Doe. He should back off in her case as well. Sexting is a social, not a criminal problem, to whose solution law enforcement has nothing positive to contribute.
Vivian Berger is professor emerita at Columbia Law School.