Alright, I heard about this story yesterday: On Monday, U.S. District Judge James Munley issued an injunction against Wyoming County (Pennsylvania) District Attorney George Skumanick. Skumanick wanted 3 teen girls who posed semi-nude for pictures sent over cell phones to attend five weeks of behavior courses and take a drug test or face child pornography charges (a felony). The girls were 13 at the time the pictures were taken. Skumanick argued that the pictures were “provocative” and said that the girls need to “gain an understanding of how [their] actions were wrong [and] what it means to be a girl in today’s society.”
The pictures showed some 2 of the teens in just their bras (with below the waist not visible) and the other teen topless.
17 students were given the ultimatum to go to behavioral classes (since the photos were distributed, he wanted everyone involved to go), but the 3 girls refused. So, the ACLU got involved. Witold Walczack, the legal director of the ACLU of Pennsylvania, told reporters, “This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting.”
Judge Munley seemed to agree, stating in his ruling, “The court agrees with the plaintiffs that the public interest would be served by issuing a TRO [temporary restraining order] in this matter as the public interest is on the side of protecting constitutional rights. … [they] have a constitutional right to avoid the courses … because the girls’ pictures were not illegal.”
Skumanick told reporters, “My big fear is setting the precedent that would allow criminals in the state system seeking protecting in the federal system.”
So, what’s my view on this? Well, first, I have to say that I hate the word “sexting” – it just bugs me. Plus, it makes it sound worse than it is – it sounds very serious – very explicitly pornographic. But, the media has fallen in love with the word, and I don’t see my term “booby texting” catching on any time soon.
But in all seriousness, I have to side with the judge here. I am a hard core law and order conservative – if the law allows for prosecution, 99.9% of the time, I’m advocating for prosecution. But I just don’t see it here. And here’s why:
It’s neither a federal, nor state crime. U.S. Code Title 18, Part I, Chapter 110, § 2256 defines “child pornography” as:
(8) child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
“sexually explicit conduct” is defined:
(B) For purposes of subsection 8(B)  of this section, “sexually explicit conduct” means—
(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
(ii) graphic or lascivious simulated;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;
As you read there, the only time that breasts are considered to be child pornography is if they are displayed during an act of simulated sexual intercourse, and that’ not the case here. So, federal law wasn’t broken. Now let’s look at Pennsylvania law:
18 Pa.C.S. § 6312 Sexual Abuse of Children (Pornography):
Definition.—As used in this section, “prohibited sexual act” means sexual intercourse as defined in section 3101 (relating to definitions), masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.
I don’t see a clear case for toplessness being illegal here. First, I don’t necessarily agree that the legal definition of “nudity” would include toplessness, and second, even if it did, the prosecutor would have to prove that the purpose of the toplessness was for sexual stimulation/gratification of the viewer.
I don’t see how the prosecutor would really have a case here.
Now, if the law were to be changed so that toplessness of a minor was child pornography, then I would fully support the prosecutor, but until then, I have to agree with the judge, that sexting of topless photos of minors is 100% legal. Now, of course this only applies to Pennsylvania; if a state does have laws against topless photos of minors, those laws should be enforced.