Court Says Parents Can Block PA "Sexting" Prosecutions

mikesd81 writes "In the first federal appeals court opinion dealing with 'sexting,' a three-judge panel of the United States Court of Appeals for the Third Circuit ruled Wednesday that parents could block the prosecution of their children on child pornography charges for appearing in photographs found on some classmates' cellphones. Miller vs. Mitchell (PDF) began in 2008 when school officials in Tunkhannock, Pa., discovered seminude and nude photographs of some female students on other student's phones. George Skumanick Jr., the DA at the time, said the students and their parents could be prosecuted if they did not participate in an after-school 'education program.' The unanimous ruling of the judges, Thomas L. Ambro, Michael A. Chagares and Walter K. Stapleton, criticized the district attorney's reliance on the girls' presence in the photographs as a basis for the potential charges. 'Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo,' said the opinion, by Judge Ambro."

Comments

Insanity

[sopssa]

the students and their parents could be prosecuted if they did not participate in an after-school 'education program.'

I love the fucking hypocrisy around sex in USA. Sure, violence and killing people is all okay, but when it's about natural human function like sex it's all bad and must be hidden. It's a great irony that just an hour ago I read news that you can't even say tampon on US TV commercial about tampon products . Women bleed once a month. Accept it and get on with your lifes.

When I was a teen we sent back and forth nude pictures of ourself with my girlfriend, and I suspect many others did too. Hell, we even had sex like every other teenager does. 15-16 year old is perfectly capable to understand sex. Age of consent is 14-16 in most of the world and 17-18 in more liberal US states. It makes absolutely no sense that you can have sex but not send a dirty picture of yourself to your boy/girlfriend, and if you do you will be taken to some kind of "education program".

The fact that parents can block some "sexting" prosecution is a stupid point. If I was a parent I wouldn't want to interfere with my 16-17 year old teen sex life, and I sure as hell didn't want my parents to interfere with mine when I was that age.

Re:Insanity

[Lunix Nutcase]

When I was a teen we sent back and forth nude pictures of ourself with my girlfriend,

So she really got around, eh?

Re:Insanity

[bmecoli]

Hell, we even had sex like every other teenager does.

I never had sex as a teen, you insensitive clod!

Re:Insanity

[wizardforce]

If I was a parent I wouldn't want to interfere with my 16-17 year old teen sex life, and I sure as hell didn't want my parents to interfere with mine when I was that age.

Maybe so but there are a lot of parents that don't want naked pictures of their perfect child floating around the school and would like to use rule of law to discourage "sexting." It's all about appearances; the parents don't want to look like they raised their kids poorly and the state doesn't want to look like they're soft on crime.

Re:Insanity

[couchslug]

The sex thing is driven by the Christian Taliban. Christianity, like the other desert superstitions, seeks to control and ration sex.

Re:Insanity

[Anonymous Coward]

He said "every other teenager", not "every teenager".

Re:Insanity

[commodore64_love]

>>>I love the fucking hypocrisy around sex in USA.

What sex? These are just pictures of a naked human, and no more harmful than pics of a naked pig or naked bird. In fact the U.S. Supreme Court has ruled multiple times that nudity is protected speech. It's why you can find images of naked children/teens in your local Barnes & Noble.

Underage sex photos should be restricted (because someone was raped), but not photos of homo sapiens in his natural state.

Re:Insanity

[commodore64_love]

Well sure.

It wastes water. Didn't you watch Dune?

Re:Insanity

[Cro Magnon]

And yet, they tell us to be fruitful and multiply. I didn't realize they were talking about diet and math.

Re:Insanity

[wisnoskij]

I think you hit the mark perfectly.

It makes absolutely no sense that you can have sex but not send a dirty picture of yourself to your boy/girlfriend, and if you do you will be taken to some kind of "education program".

No sane person would call teens sending their teenage boy/girlfriends a dirty picture of themselves pedophiles or bring them up on child porn charges.
But obviously just mentioning the words "child porn" makes a lot of people loose their sanity.

Re:Insanity

[wiredog]

I sure as hell didn't want my parents to interfere with mine when I was that age.

That's because you were a teenager, and thus an idiot. I know, I was a teenager once. Know several now. Teens are much more likely to act without thinking than adults. Much more likely to think "A condom reduces my pleasure, so I won't wear one, because I won't become a father|catch an STD|both" and act upon that.

As adults we (should) know better.

Re:Insanity

[Jason Levine]

My parents still interfere. However, their interference has evolved into "so when are you going to have another child?" To which I respond "Two kids is enough! That's all we're having!"

Of course, back in college, my father's idea of "interfering" with my sex life was walking with me on campus eyeing the women (and by eyeing I mean turning his head so fast I worried he'd get whiplash) and telling me I should walk up to them and ask them to sleep with me. My response then was "If they said yes to a random guy walking up to them asking for sex, then I sure as hell *DON'T* want to sleep with them!!!"

Re:Insanity

[UnknowingFool]

The court did not rule that sexting was illegal. Nor did the court rule that is/is not considered child pornography. Nor did the court rule that parents can block any and all sexting charges. In this case the court ruled that being the subject of a photo is not grounds for child pornography charges.

After some provocative photos were found of some teenage girls, the DA wanted them to attend a class. The girls were not nude but shown in underwear or wearing a towel. The class was optional only if the girls wanted to avoid being prosecuted for felony child pornography. The parents sued to block the prosecutions. The court unanimously agreed with the parents because being the subject of a photo does not violate child pornography laws. Possesion of the photo is where charges may occur but the DA could not prove the girls ever had possession of any photos, merely that they were subjects of them.

Had the DA won, it would have led to some crazy interpretations. If someone installed a spy camera in a dressing/changing area, then any teenage girls secretly caught on camera could be prosecuted for child pornography.

Re:Insanity

[Hatta]

Underage sex photos should be restricted (because someone was raped)

Not all under age sex is rape. Even if you accept the legal fiction that people under a certain age are incapable of consent, the age of consent differs from the age of majority in many places. In fact, people have been prosecuted for child pornography after taking pictures of perfectly legal sex acts. Hell, in my state a few years ago a man was sent to prison for having sex with his wife who he legally married in another state.

Re:Insanity

[Anonymous Coward]

So, you're arguing in favor of letting them make the decision then?

Seriously, where do you get off arguing against it even as you begin with " An adult at least has experience to draw on "

Where do you think they're going to get experience? Look, you let people make *little* mistakes while you watch, so they don't make huge ones later on when you're not there. Let the girl take a picture of herself pulling the bikini a bit low and showing some pink--even if it ends up all over the damned net, at least it isn't a damned video of her b/f pegging her--which would also end up on the net. Yeah, the lesson will hurt--but not as much as the later one.

You know who the most screwed up girls were back in school? The *real* catholic schoolgirls raised by Nuns. And while having three of them go down on me at once in a dark dorm room is a *wonderful* memory--they weren't ready for it--and I regret sharing that with them. And with their screwed up perception of what physical relationships should be, I'm not sure they ever were.

People need to screw up to learn--give them some room to fail gracefully and learn how to pick themselves back up.

Re:Insanity

[falconwolf]

You sure as hell *better* interfere with your 16-17 year old's sex life. Teenagers are stupid fuckers, and can get HIV or become pregnant as easily as 30-somethings.

Then teach them safe sex. Many teens have sex yet their lives don't fall apart after that. And abstinence only does not work.

Falcon

Re:Insanity

[tomthepom]

Underage sex photos should be restricted (because someone was raped),

It's this kind of inflexible logic that leads to situations where if 15 year old girl sends sex photos to her 16 year old boyfriend, they run the risk of being charged and prosecuted, him as a child molester and her as a child pornographer! Two lives potentially destroyed because 'someone must have been raped'. The only one doing the raping here is the state.

Re:Insanity

[plague3106]

Actually, if you want your daughter to pregnant or start having regular abortions at age 9 or whatever, great. I don't want my daughters to be fucked by any old dude with a penis, requiring her to get HPV vaccines and take hormone pills during the time of her puberty and maturation.

You sound too misinformed to be allowed to have children. You think laws keep kids from having sex, and if that do they start at 9?

I also don't want you telling me how to raise my kids any more than you want me telling you how to raise yours.

And as for "Christian Taliban" when was the last time any "christian" stopped you from raising your kid the way you wanted. HMMM?

Well lets see, there's no nudity on TV because of conservatives, which invariably are religous. Oh and there was the outrage from christain groups because some kids saw a nipple during the superbowl. Then there are the blue laws. I think you get the idea.

People who talk like you have never raised any kids or had to deal with the crap that results. I can't wait till you have a slutty daughter, who is pregnant at 13, by a 26 year old loser.

Ya anyone that disagrees OBVIOUSLY can't have raised kids, and OBVIOUSLY are bad parents. My wife didn't raise her kids like you, she never hid sex, she had appropriate conversations at appropriate ages. Her kids are fine.

But I also know a few girls with parents like you. Thank you, because girls raised by people like you are the real sluts with no limits, and its fun to watch them strip, fuck, and party.

Re:Insanity

[Bakkster]

But most of the tools to raise children correctly are considered 'old fashioned' or even unacceptable. Martial punishment when young, strong leadership from the father and a nurturing mother (which is, of course, 'sexist' because men and women are the same), and actually following through with punishments (the horror!). The only proper method of parenting is found in an after-school program.

Re:Insanity

[schon]

a lot of parents that don't want naked pictures of their perfect child floating around the school and would like to use rule of law to discourage "sexting."

So the solution is to have their own children branded as sex offenders after they've committed the act?!?!?!

Yeah, you've thought that out well.

Re:Insanity

[dfenstrate]

You presume that you will always make better choices than your children will? Interesting...

Not always, just 99% of the time when there is a disagreement.

Or have you not learned a damn thing since you last technically qualified as a child, assuming you're not one right now?

More kids need their parents to be parents. We've got enough undisciplined little hellions running around as it is, because their parents won't enforce rules, boundaries, or limitations.

The natural state of mankind is savagery. Overcoming that is the duty of the parent.

If you're bent out of shape after 'suffering under the oppressive thumb' of your father, it's probably because he understands things you don't, but lacks the articulation to explain it to you, or you lack the capacity to listen.

Re:Insanity

[idontgno]

Martial punishment when young,

Did you mean corporal punishment, or do you really kung-fu roundhouse kick your kids, a la Chuck Norris?

Re:Insanity

[mcgrew]

You presume that you will always make better choices than your children will?

Spoken like a true teenager.

At the McLean Hospital in Belmont, Mass., Deborah Yurgelun-Todd and a group of researchers have studied how adolescents perceive emotion as compared to adults. The scientists looked at the brains of 18 children between the ages of 10 and 18 and compared them to 16 adults using functional magnetic resonance imaging (fMRI). Both groups were shown pictures of adult faces and asked to identify the emotion on the faces. Using fMRI, the researchers could trace what part of the brain responded as subjects were asked to identify the expression depicted in the picture.

The results surprised the researchers. The adults correctly identified the expression as fear. Yet the teens answered "shocked, surprised, angry." And the teens and adults used different parts of their brains to process what they were feeling. The teens mostly used the amygdala, a small almond shaped region that guides instinctual or "gut" reactions, while the adults relied on the frontal cortex, which governs reason and planning.

As the teens got older, the center of activity shifted more toward the frontal cortex and away from the cruder response of the amygdala.

How old are you? In almost all cases, an adult WILL make better choices than a teenager will.

I've been a teenager, and I'm the father of two former teenagers. I think I know what I'm talking about here.

Re:Insanity

[swillden]

How old are you? In almost all cases, an adult WILL make better choices than a teenager will.

Beyond fMRI studies, there are lots of other formal studies and semi-formal observations (look at actuarial data on auto accidents, for example) that show that the cognitive ability we call "judgement", the ability to weigh multiple competing factors with a fair degree of accuracy and arrive at a sensible conclusion, is something that isn't fully-developed until the mid-20s.

Now, I'm not saying that every adult old enough to have teenaged children always exercises good judgement, or that teenagers never do, but overall adults are much better equipped to make difficult choices than kids are. When it comes to sex, the problem of poor judgment is exacerbated by powerful new emotions and sexual feelings that the teenager has only recently begun to experience.

Really, you'd have to be crazy to expect teenagers to make good choices about sex. Hell, lots of adults make really bad choices about sex, and that's after a few decades of getting used to the issues, and with as much judgement as they're ever going to develop! Kids don't have either of those advantages, and are at correspondingly greater risk.

Of course, many of them make bad choices and escape unscathed. But some of them don't. STDs and unwanted pregnancies can really screw with a young person's future. And if they show really poor judgment, especially when coupled with what are normally relatively minor cognitive disorders like poor impulse control (a common characteristic of ADHD), they can end up with criminal charges, and for far worse than "sexting".

Yes, parents of teenagers find sex more than a little bit scary. Not because they're prudes who don't want their kids to have any fun. Because they see how their kids often make bad decisions -- which is a perfectly normal, healthy and even necessary part of growing up -- and they recognize that bad decisions in this area can have severe and long-lasting consequences. And parents don't want their kids to have to suffer those consequences.

Wait a second....

[NeutronCowboy]

On the face of it, it sounds good - it's unlikely parents will agree to child pornography prosecutions against their own child. But looking closer at it, this is just batshit-insanity dressed up with a legal fig-leaf. "Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo" sounds to me like they judges are merely arguing that childporn charges do no apply because images themselves do not provide much evidence of who took the picture. It still completely neglects the issue that the current childporn laws apply to people under the age of consent who took naked pictures of themselves! Yes, I know, then there could be a loophole that pedophiles just force their victims to take their own pictures. Honestly - I don't care. The current laws not only make criminals out of people who really didn't do anything wrong, but also terminally fuck someone for the rest of their lives just because they took a picture of themselves.

Yes, yes, pedophilia is the root password to the Constitution, etc. But apathy and fatalism isn't gonna cut it. Write to your congress critters, and interrupt people who blather on about the danger of random strangers taking pictures. Tell them that they ought to look up the weird uncle first.

Stupid question time

[Locke2005]

Why isn't it illegal for the school officials to be in possession of nude pictures of underage children?

Aren't we forgetting something?

[__aavevi421]

Pictures of naked people aren't porn. Pictures of naked children are not porn. Porn is sexual. Nudity isn't. Just because 'someone' thinks it's porn does not make it so.

Voluntary?

[russotto]

The District Attorney needs to go to vocabulary re-education class:

"Participation in the program is voluntary," the letter said. "Please note, however, charges will be filed against those that do not participate or those that do not successfully complete the program."

Except in OrwellWorld(TM), "obey or be prosecuted" is not "voluntary".

"Appearing in a photograph provides no evidence as to whether that person possessed or transmitted the photo," said the opinion, by Judge Ambro.

Not noted in the article was that Judge Ambro specifically credited Captain Obvious, Esq. for his amicus brief on this subject.

Do it while you CAN!!

[cayenne8]

You know, I see lots of people on this topic saying teen shouldn't be having sex.

Can NONE of you remember what it was like as a teen and sex?

Hell, I'd say to young people...sure, be responsible, protect yourself, but get out there and FUCK!! These are you best fuck years, particularly males!!

Lordy, when you're that age, you can fuck, blow a wad...and keep it hard and start right back up again. Take advantage of stamina and libido while you have it.

It won't last forever...