Taking issue with the recent uptick in law enforcement agencies’ use of child pornography laws to prosecute teens who “sext,” a Lehigh County judge said likening sexting to child pornography is “an overreaction by law enforcement.”

Lehigh County Court of Common Pleas Judge Robert L. Steinberg threw out the charges of sexual abuse of children filed against teen C.S., who posted a video on her Facebook page of two other teens engaged in a consensual sexual act.

While law enforcement action may sometimes be necessary, Steinberg called the use of child pornography statutes in sexting cases a “round hole/square peg approach.”

“Those who are adjudicated or convicted of child pornography offenses are sexual offenders and often predators,” Steinberg said. “Teenagers who engage in sexting should not face the same legal and moral conundrum.”

Steinberg said the solution to sexting, which he called part of the “world of the new-millennium teen,” should be addressed by the legislature. He said there are bills pending in Pennsylvania that make sexting and cyberbullying misdemeanors and not the felonies with which the state was seeking to charge C.S.

“In sum, the child pornography statutes as applied to teenage sexting, or in this case, teenage Facebook posting, fail to provide a teenager of ordinary intelligence ‘fair notice’ of what is prohibited,” Steinberg said. “It also authorizes or encourages enforcement without proper guidelines or discretion.”

Steinberg found the charges against C.S., as they were applied to her, void for vagueness.

Steinberg’s feelings about the charges could be felt from the first paragraph of his eight-page opinion.

“The juvenile, C.S., has been charged with crimes that could be interpreted as those committed by a deviant sexual offender. What heinous acts has she allegedly committed: the posting to her Facebook page of the consensual sexual acts of L.C. and M.T., who are ages 16 and 17,” Steinberg said.

According to Steinberg’s opinion, L.C. agreed to allow M.T. to record their sexual encounter. At some point later, M.T. texted his recording to others, including C.S.

C.S. later posted the video to her Facebook page and the comments on her page suggest the purpose was not sexual, but rather to subject L.C. to public criticism, Steinberg said. C.S. was charged with sexual abuse of children — the dissemination of video; and sexual abuse of children — possession of child pornography.

Many teens engage in sexting, Steinberg said, and the response by law enforcement has included efforts to delete the images, recommend participation in educational programs and, more frequently, prosecute under child pornography laws.

“The purpose behind the child pornography statutes has little or nothing to do with ‘sexting,’” Steinberg said, adding many scholars have questioned the use of such laws to punish children for their mistakes.

Steinberg said it was ironic that, in this case, L.C. and M.T. engaged in a lawful act, but C.S. was arrested for publishing the lawful act.

A person of ordinary intelligence, including teenagers, would understand the possession of child pornography is illegal and that child pornography statutes were created to protect children from abuse and exploitation, the judge said.

“These same teenagers, unless prosecuted, would be clueless that their conduct falls within the parameters of the Sexual Abuse of Children statute, Section 6312,” Steinberg said. “Not only is sexting prevalent in their world, but it is doubtful they would connect sexting with the sexual exploitation of children.”

While child pornography creates a permanent record of child abuse that results in continuing exploitation, sexting usually involves consensual acts, Steinberg said. He said teenagers sext for reasons totally unrelated to the exploitation or abuse of children.

Given that M.T. was the one who sent the video to others and he wasn’t pursued or interviewed, Steinberg said it is apparent that pursuing child pornography charges against teenagers who were sexting encourages arbitrary arrests and convictions, which is a key concern of the void-for-vagueness doctrine.

Andrea Olsovsky of the Lehigh County Public Defender’s Office represented C.S. Olsovsky said that when she was assigned the case she did research into child pornography charges brought against Pennsylvania teens who were sexting and found most of those cases never go to court because the teens go into a diversionary program or the charges are lowered.

Olsovsky said she argued the result of C.S.’s actions was not the harm the statute intended to prevent. She said the Lehigh County District Attorney’s Office has recently filed its intention to appeal the judge’s July 24 ruling in In re C.S.

Craig Scheetz, chief deputy district attorney, represented the county in the case and confirmed it appealed the matter to the Superior Court. He declined to comment further.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.