Sexting Girls Facing Porn Charge Sue D.A.

One summer night in 2007, a pair of 13-year-old northeastern Pennsylvania girls decided to strip down to their skivvies to beat the heat. As Marissa Miller talked on the phone and Grace Kelly flashed a peace sign, a third girl took a candid shot of the teens in their white bras.

It was harmless, innocent fun, the teens say.

But the picture somehow wound up on classmates' cell phones, and a prosecutor has threatened to charge Miller and Kelly with child pornography or open lewdness unless they participate in a five-week after-school program followed by probation.

On Wednesday, the American Civil Liberties Union asked a federal judge to block Wyoming County District Attorney George Skumanick Jr. from filing charges, saying that the teens didn't consent to having the picture distributed, and that in any event the image is not pornography.

"There was absolutely nothing wrong with that photograph," said Marissa's mother, MaryJo Miller, 44, of Tunkhannock.

"I certainly don't want pedophiles looking at my daughter in her bra, but I don't think that was the intention to begin with," she said in an interview with The Associated Press. "This is absolutely wrong on his part. It's abuse of his authority."

Marissa Miller, Kelly and their parents were joined in the lawsuit by a 17-year-old Tunkhannock girl from the same school who was photographed topless last year in a separate setting. The teen, also facing felony charges unless she takes the class, is called "Nancy Doe" in the lawsuit to protect her privacy.

Skumanick said he would fight the lawsuit.

Appearing on The Early Show, Wyoming County district attorney George Skumanick Jr. said that his office could have filed charges against the girls, ranging from "sexual abuse of children in Pennsylvania, criminal [use] of a communications facility, or open lewdness, and there were other possible charges also," but that his office decided to make an offer of limiting penalties to probation if they attend a sexual harassment program.

Responding to the lawsuit, Skumanick said that the actions of Miller and the other girls are not the issue being considered. "The issue before the federal court is whether or not the federal court has the right to interfere with the separation of powers of my office - and any district attorney across the country - from deciding when to file criminal charges," he said. "We could have taken the easy way out here and simply filed charges against these children, and we wouldn't have been here. We offered them a way out, a way to avoid charges."

Skumanick characterized the lawsuit as an effort to have a federal judge prevent local law enforcement from doing its job, which he warned would create a slippery slope:

"Basically what they're seeking is, they're seeking a federal judge to say whether or not I can file criminal charges against them," he said. "So frankly what they're asking the federal court to allow is, is to allow you to go out, commit a crime, run to the federal courthouse before you can be arrested, and file papers saying, 'Please don't allow them to arrest me, it's going to violate my civil rights.' That's not how the system can possibly work.

"To allow this type of action would allow anyone to plan a crime, commit it, run to the federal courthouse, and then file paperwork saying, 'My rights are being violated. Don't let them arrest me,' and then avoid arrest for years."

"It does seem like a case of kids just being kids and not realizing they were committing a crime when they did whatever it is they did," Early Show anchor Julie Chen suggested.

"Well, as you well know, ignorance of the law is not a defense," Skumanick said.

"What we elected to do, instead of around the country where they simply arrested these children, is to simply made them an offer to avoid prosecution, to avoid a criminal record of any sort, and developed an educational program to help them understand the true dangers of this and the long-term effects of this on them and their future."

When asked by Chen if he would order the arrest of Miller or the others for saying no to his offer, Skumanick said, "Well, actually, they never did say 'no.' They filed this lawsuit before they said no. I've never heard an official 'no' from them."

"Well, this is a case of young girls taking pictures of themselves in bras at a slumber party," said CBS News legal analyst Lisa Bloom. "To think they'd be prosecuted for child pornography, face years in prison, register as sex offenders for the rest of their lives - have we lost our minds?

"Teens have this brand-new technology. They're using it in foolish ways. It's bad judgment. I think parents and teachers should punish them. But to subject them to these harsh criminal penalties I think is very scary, and we as citizens all have to reconsider what we're doing with our laws, catching so many children up in these kinds of dragnets."

"Sexting" Confounds Parents, Educators And Law Enforcement

The photos at the center of this debate 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.

Called "sexting" when it's done by cell phone, teenagers' habit of sending sexually suggestive photos of themselves and others to one another is a nationwide problem that has confounded parents, school administrators and law enforcement officials.

Prosecutors in a number of states, including Pennsylvania, Connecticut, North Dakota, Ohio, Utah, Vermont, Virginia and Wisconsin, have tried to put a stop to it by charging teens who send and receive the pictures.

In Tunkhannock, a town about 130 miles north of Philadelphia, Skumanick met with about 20 students and their parents last month and offered them a deal: The youths wouldn't be prosecuted if they took a class on sexual harassment, sexual violence and gender roles.

"If we were just out to be nasty about this, we would have just charged everybody," Skumanick said Wednesday.

Seventeen of the students accepted his offer.

But when MaryJo Miller protested to Skumanick that the photo portraying her daughter and Kelly couldn't possibly be considered child porn, he replied that the girls were posed "provocatively," according to the lawsuit.

"You'd have to see the photo and see the setting, which I'm not going to show to the public because I don't think it's appropriate," he said.

The year-old photo of Nancy Doe, meanwhile, shows her just out of the shower, with a towel wrapped around her waist and her breasts exposed.

Vic Walczak, legal director of the Pennsylvania ACLU, would not say who took the photo or whether she sent it to anybody. But he said she did not intend for it to be widely distributed.

"Our client has absolutely no idea how it ended up on strange people's cell phones," he said.

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. Open lewdness, a misdemeanor, includes any lewd act that is likely to be observed by others.

The ACLU's lawsuit claims both photos are protected First Amendment speech.

"One of the concerns all of these kids have is it's getting to be summertime, they're going to the beach and the pool, and do they need to be worried about taking photos of themselves swimming around?" Walczak said. "Who knows what he decides will be too provocative?"

Skumanick said swimsuit-clad kids have nothing to fear from him.

Prosecution And Legislation

Meanwhile, children in other communities are facing serious legal problems for creating or sending pictures of themselves.

A 14-year-old New Jersey girl has been accused of child pornography after posting nearly 30 explicit nude pictures of herself on MySpace.com.

The National Center for Missing and Exploited Children tipped off a state task force, which alerted the Passaic County Sheriff's Office.

The office investigated and discovered the Clifton resident had posted the "very explicit" photos of herself, sheriff's spokesman Bill Maer said Thursday.

The girl posted the photos because "she wanted her boyfriend to see them," he said.

"We consider this case a wake-up call to parents," Maer said.

The teen, whose name has not been released because of her age, was arrested and charged with possession of child pornography and distribution of child pornography. She was released to her mother's custody.

If convicted of the distribution charge, she would be forced to register with the state as a sex offender under Megan's Law, said state Attorney General Anne Milgram. She also could face up to 17 years in jail, though such a stiff sentence is unlikely.

The mother of the New Jersey girl whose death inspired Megan's Law is criticizing prosecutors who charge teenagers with child porn for distributing nude photos of themselves.

Maureen Kanka said Thursday that the prosecutors are harming the children more than helping them.

In Falmouth, Mass., police issued summons against a group of six teens, aged 12 to 14, who are accused of sending nude pictures of a 13-year-old girl through their cell phones. One of the teens had allegedly taken the photo of his 13-year-old girlfriend before sending it to others.

They are charged with possessing and distributing material of a child in a sexual act. They may face child porn charges as well.

In Syracuse, N.Y., police have charged a 17-year-old boy with messaging a sexually explicit video to a 13-year-old girl's cell phone after striking up a relationship on MySpace.com.

The 10th-grader faces charges of second-degree disseminating indecent material to a minor and endangering the welfare of a child.

In Ohio, Republican state Rep. Ronald Maag said Thursday that he plans to introduce a bill that would make it a misdemeanor for minors to send nude images over their cell phones.

Warren County Prosecutor Rachel Hutzel had asked legislators for changes in Ohio law. Currently, minors involved in sexting could face felony charges under Ohio's child pornography law.

Maag says prosecutors still could pursue harsher penalties if appropriate.