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Judge Puts "Sexting" Prosecution On Hold

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A federal judge says he isn't ruling yet on the merits of a lawsuit filed against a prosecutor on behalf of three northeastern Pennsylvania teenagers.

But for now, he's banning Wyoming County District Attorney George Skumanick Jr. from filing child porn charges against the girls for racy cell-phone pictures of themselves.

U.S. District Judge James Munley issued a temporary restraining order Monday against Skumanick. The prosecutor has said he would pursue felony charges against the girls unless they agree to participate in a five-week after-school program.

But the teens say they didn't consent to having the pictures distributed to classmates' phones. They also say the photos aren't pornographic but protected First Amendment speech.

The American Civil Liberties Union filed a federal lawsuit last week on the girls' behalf. Munley says he'll hear arguments on the ACLU lawsuit in June.

One picture showed two of the girls in their bras. The second photo showed another girl just out of the shower and topless, with a towel wrapped around her waist.

"We are grateful the judge recognized that prosecuting our clients for non-sexually explicit photographs raises serious constitutional questions," Witold Walczack, legal director of the American Civil Liberties Union of Pennsylvania, said in a statement.

"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" when teens send sexually suggestive photos of themselves and others to one another, he said.

Skumanick, who has said he can prosecute the teens as "accomplices" in the production of child pornography, said he would consider an appeal.

The ruling "sets a dangerous precedent by allowing people to commit crimes and then seek refuge from state arrest in the federal courts," he said.

The photos surfaced in October, when officials at Tunkhannock Area High School confiscated five cell phones and found that boys had been trading photos of scantily clad, semi-nude or nude teenage girls. The students with the cell phones ranged in age from 11 to 17.

Skumanick met with about 20 students and their parents last month and offered them a deal in which the youths wouldn't be prosecuted if they took a class on sexual harassment, sexual violence and gender roles. Seventeen of the students accepted the offer, but three balked and sued Skumanick last week.

Munley's decision to grant the teens a temporary restraining order prevents Skumanick from filing charges while the lawsuit proceeds.

The girls "make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs' argument that (they) were not involved in disseminating the images is also a reasonable one," Munley wrote.

Under Pennsylvania's child pornography law, it's a felony to possess or disseminate photos of a minor engaged in sexual activity, "lewd exhibition of the genitals" or nudity that is meant to titillate.

The judge said he "offers no final conclusion on the merits of plaintiffs' position" and scheduled a hearing on the case for June 2.