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Teen Sexting: To Parent or To Prosecute
Sara Jacobson, Esq.
Director of Trial Advocacy and Associate Professor Temple University,
Beasley School of Law
Ever since the emergence of the teen sexting phenomenon, members of the legal community have debated whether sexting should be prosecuted or whether it should be handled at home by parents. The line between parenting and prosecution became further blurred this month as Pennsylvania’s judges and legislators took actions that support different sides of this debate. While a federal court found in favor of parents’ rights, the legislature sought to made prosecution of sexting offenses easier. On March 17th, a Third Circuit panel handed down Miller v. Mitchell, upholding an injunction that prevented prosecution of a Pennsylvania teen sexting case and concluding that the prosecution violated a parent’s right to parent. That same week, the Pennsylvania State House voted an amended sexting bill out of the judiciary committee. House Bill 2189 would create a new criminal offense targeting teen sexting.
The term ‘sexting’ refers to the cell phone exchange of explicit text messages or pictures of nudity. Sexts are frequently initiated by consenting teenagers, although it’s not uncommon for the messages to be forwarded to someone other than the original recipient. There is a growing consensus that while sexting is both reckless and dangerous, kids shouldn’t be saddled with a lasting felony record for this kind of lapse in judgment. Currently when kids are caught sexting, those of Pennsylvania prosecutors who choose to charge them criminally, charge §6312, Sexual Abuse of Children. §6312 essentially criminalizes possession or distribution of child pornography. It is a felony sex offense, regardless of whether juveniles voluntarily send a picture of themselves, possess a picture of someone else on their phone, or disseminate a sext widely.
House Bill 2189 is designed to offer an alternative to prosecution under §6312. HB 2189 was originally introduced by Representative Seth Grove (R- York) and referred to the House Judiciary Committee on January 5th. HB 2189 would create a new offense, §6321, Dissemination of Prohibited Materials by Minors via Electronic Communications. The bill makes it a second degree misdemeanor for minors to transmit, disseminate, or possess depictions of other minors engaging in sexually explicit conduct. The law specifically excludes depictions of sex, relegating them to prosecution under §6312.
Following concerns expressed by the American Civil Liberties Union (ACLU) and the Juvenile Law Center (JLC), legislators amended the bill before voting it out of the Judiciary Committee last month. The amendment narrowed the original legislation’s definition of prohibited depictions from ‘nudity’ to ‘sexually explicit conduct.’ The change was designed to avoid constitutional concerns arising from the potential prosecution of images of nudity rather than those of a prurient nature, given that nudity and obscenity are not the same thing. The sexting bill would also amend §6312 to make clear that prosecutors can charge either §6312 or the new sexting offense, but not both. Absent this amendment, a real possibility existed that some prosecutors might charge both crimes simultaneously, particularly given that charging decisions are discretionary and vary widely from county to county. HB 2189 also makes mention of diversionary alternatives available to prosecutors and the attendant expungement of juvenile records for completion of a diversionary program. Neither the optional diversionary provisions nor the expungement sections add anything new to what prosecutors already have authority to offer. What is new, however, is a prohibition on secure detention of juveniles who are charged or adjudicated delinquent solely for the new sexting offense.
Prosecutors and advocates will continue to debate the Constitutionality and merits of the new bill. Its definitions of sexually explicit conduct and nudity may still be too broad to pass First Amendment scrutiny. The optional diversionary procedures it lays out may not be meaningful, given that they offer nothing new to the power prosecutors already possess. Because the diversionary alternatives are discretionary, implementation will be dependent on local practice. While charging kids with a misdemeanor rather than a felony looks like an improvement from §6312, charging a misdemeanor neither decreases the potential sentence that juveniles face nor facilitates expungement of juvenile records. HB 2189 has a practical impact by precluding dual felony pornography prosecution under §6312, which lowers the likelihood that juveniles charged with sexting will have to register as sex offenders should Pennsylvania pass “Adam Walsh” provisions in the future. The softened language of HB 2189 makes prosecution more palatable, thus encouraging referrals to law enforcement for kids caught sexting. Legislators are sending the message that sexting should be a crime, just not a big one.
The question of who should punish teens for sexting, parents or prosecutors, was addressed by the Miller decision handed down by the Third Circuit the same week HB 2189 moved out of committee. The Miller case came from an appeal of a District Court preliminary injunction that prohibited then District Attorney George Skumanick from charging three girls with §6312 for appearing in sexts.1 The District Attorney originally threatened prosecution in juvenile court if the girls did not attend and pay for a reeducation course he designed to teach them, among other things, “an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.” (http://www.aclupa.org/downloads/ MillerOpinion.pdf). According to the prosecution, thirteen girls and three boys were offered this program in lieu of facing charges of §6312. All but three girls took the deal. The remaining three filed suit, claiming the threatened prosecution violated the first amendment rights of the juveniles and the fourteenth amendment right of the parents to choose how to raise their children.
Miller allegedly appeared in a cell phone picture wearing a white bra, in a photo her mother characterized as her daughter and her friend behaving like goofballs. When questioned by the court during oral arguments, the District Attorney could not point to evidence that Miller transmitted or possessed the picture other than the fact that she appeared in it. Because there was no evidence that the girls did anything more than appear in the picture, the court concluded that there was no probable cause to prosecute the case and that the motive for bringing the prosecution was retaliatory.
The pleading and posture of the case prevented the court from directly considering whether prosecuting sexting under §6312 violated the girl’s First Amendment right to free expression. Instead, the analysis centered around whether this prosecution amounted to retaliation for an exercise of a Constitutional right. In upholding the injunction, the circuit court concluded that there was a reasonable probability that the plaintiff would show at trial that, “1) (s)he engaged in constitutionally-protected activity; 2) that the government responded with retaliation; and 3) that the protected activity caused the retaliation.” (Id. at 16). Although the court declined to directly address the question of freedom of expression in the photo itself, it did find that forcing this education program by threatening criminal charges violated a due process right to parental autonomy. The court noted, “(w)e agree that an individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles,” and it went on to note that prosecutors do not share the kind of secondary responsibility in a child’s upbringing that school officials do. Id. The court also concluded that forcing the juvenile to write essays about why what she did was wrong violated her First Amendment right to remain free from compelled speech.
A tension exists between what the court said and what the legislature wants to do. The court said that in the sexting case before them, coercing kids into education programs by threatening to prosecute them violated a parent’s right to parent. On the other hand, HB 2189 seeks to make prosecution for sexting more palatable by reiterating existing pretrial diversionary alternatives that are not unlike those District Attorney Skumanick attempted to employ. March saw the legal responses to sexting that favor parenting and those that favor prosecution come one step closer to an impending impasse. HB 2189 was only voted out of committee, and is not yet the law in the Commonwealth. The Miller case only dealt with the preliminary injunction, and the suit to permanently enjoin the sexting prosecution must still move forward toward trial. The approaches toward disciplining teens for sexting of the federal court and of the legislature have yet to come into direct conflict, but every time society chooses to arrest a teen for sexting, they come closer.
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Prosecutors eventually abandoned prosecution against two of the girls who were removed from the suit, and Skumanick was defeated in a subsequent election for District Attorney of Wyoming County. The caption of the case was changed to Miller v. Mitchell to reflect the name of the current parties. |
