No Decision yet from the Third Circuit Court of Appeals In Sexting vs. Child Pornography Case

In January, The United States Court of Appeals for the Third Circuit, in Philadelphia, heard arguments in a case of three female teenagers accused of participating in a practice, now referred to as “sexting”. Sexting involves taking nude or risqué photographs on a cellular phone and transmitting them via picture messaging or e-mail to another cellular user. The issue of sexting has become one of major concern in today’s teenage society, with MTV initiating a television campaign to warn of the dangers of sexting. Advocates against the practice argue that teens who participate in sexting put their safety at risk, as once a sexual picture is sent, the sender no longer has control over who sees the picture, including sexual predators. The opposition argues civil and constitutional rights, such as the First Amendment right to freedom of speech.

In the criminal realm, the issue of sexting at least amongst those under eighteen years of age creates an area of prosecutorial concern; specifically whether the practice of sexting amongst minors constitutes creation and distribution of child pornography. Many jurisdictions have dealt with the issue of charging minors in relation to sexting incidents. Said charges have ranged anywhere from Obscenity to Possession of Child Pornography. The issues before the Third Circuit this past January not only involved the criminal prosecution of those involved, but the actions of Prosecutors as well.

Three young females from just northwest of Scranton, Pennsylvania, were caught with photographs of themselves on their respective cellular phones; two twelve-year olds are portrayed in training bras and one sixteen-year old is portrayed in a bath towel with her breasts exposed. All three are accused of disseminating those photographs. The Wyoming County District Attorney who considered prosecuting the matter gave the girls an ultimatum; attend a course developed by the District Attorney’s office to educate young girls on the dangers of being a teenage girl in today’s society, or face criminal prosecution in the alternative. The girls were also required to write essays admitting that their actions were inappropriate and why those actions were improper. The ACLU moved for an immediate injunction on criminal prosecution of the girls and said injunction was granted by the United States District Court for the Middle District of Pennsylvania, holding that the photographs in question did not constitute child pornography and were therefore protected by the First Amendment.

At the hearing in front of the Third Circuit, prosecutors admitted that the photographs of the two twelve-year olds were not child pornography, but rather made in bad taste. Prosecutors agreed that charges could not be brought against the twelve-year olds, however maintained that the sixteen-year old’s photograph with her breasts exposed constituted a chargeable offense. The Appellate panel did not seem keen to the idea of the District Attorney’s office attempting to educate young females of the dangers of sexting, as the DA’s role is not that of a teacher. The panel also seemed skeptical about the transmission of nude photographs of one’s self, by choice, as being dissemination of child pornography. Lawyers for the girls further argued that the pictures do not even portray the pubic area, let alone genitalia, and therefore charging the girls with a second-degree felony which carries a ten year prison sentence is extremely excessive and unconscionable.

Many oppose prosecution in these cases for the simple reason that the participants do not have a criminal intent, but rather are merely conforming to society as they see it. There are no penalties for the same consensual actions amongst those over the age of eighteen. Many agree that the responsibility stems with the parents to talk to their children. Children should understand that once an image is sent, they no longer have any control over it; and with today’s technology, such material can easily end-up on the internet, be used for spite, etc. Teens should understand that cellular phone technology does not come with a 100% guarantee of privacy.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.