That the 3rd U.S. Circuit Court of Appeals would even need to hear oral arguments in the case of Miller, et al. v. Skumanick last week is a pretty good indication that law enforcement officials in Wyoming County, Pa. have lost their collective minds.
At issue in the case: Whether the U.S. Constitution permits prosecutors to charge minors who pose for nude or risqué photos with child pornography. You read that correctly. In order to protect children from predators and child pornographers, the local district attorney is threatening to prosecute minors who pose for racy photos as if they were child pornographers.
Even within the context of the already hysterical overreaction to the "sexting" phenomenon, the facts in Miller are jaw-dropping. Of the three girls bringing suit, two were photographed at a slumber party wearing training bras. The third photographed herself baring her breasts, then sent the photo to a boy she'd hoped to make jealous. The girls aren't in trouble for distributing the photos, or even for taking them. They've been introduced to the criminal-justice system merely for appearing in them.
Wyoming County District Attorney George Skumanick, Jr. gave the girls a choice. The first option was to face felony child pornography charges, punishable by up to 10 years in prison. The second was to attend a series of Skumanick-chosen classes, which according to the Pennsylvania ACLU, included topics such as "what it means to be a girl in today's society" and "non-traditional societal and job roles." The girls would also be put on probation, subject to random drug tests, and would have to write essays explaining why appearing in photos while wearing their bras is wrong.
Skumanick later told tell a gathering of students and parents that he had the authority to prosecute girls photographed on the beach in bikinis, because the minors would be dressed "provocatively." He told the Wall Street Journal that by offering the girls the classes and probation instead of immediately hitting them with felony charges, "We thought we were being progressive."
Of the 19 minors Skumanick targeted, 16 chose the classes. The other three took Skumanick to court, where they won a restraining order. Skumanick appealed. To the credit of the people of Wyoming County, after 20 years in office Skumanick lost his bid for reelection last November. But his office continues to fight.
But this isn't just an isolated case of a renegade DA. There have now been several cases across the country where young people who either pose for, snap, or forward provocative or nude photos of other minors are being charged or threatened with felony child pornography. In 2007, a state appeals court in Florida upheld charges of "directing or promoting a photograph featuring the sexual conduct of a child" and possession of child pornography charges against a 17-year-old boy and a 16-year-old girl for forwarding explicit photos of themselves having sex from her computer to his e-mail address. The sex wasn't illegal. But the photos were. Incredibly, Judge James Wolf wrote in the majority opinion: "Mere production of these videos or pictures may ... result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives."
The message to minors: These photos can ruin your lives, kids. And just to prove it, we're going to ruin your lives.
These cases are the natural culmination of two trends. The first is the continuing view among politicians that there's no punishment too severe for sex offenders. Moreover, to show how serious we are about sex offenders, we should broaden the class of people we classify under the label. And there needn't be any actual victims.
In 2006, Karen Fletcher, also of Pennsylvania, was convicted in federal court for writing fictional stories (and granted, they were disturbing stories) about sexual and violent crimes against children. Until The Supreme Court Struck it down in 2002, the 1996 Child Online Protection Act criminalized images of adults made to look like minors, as well as digitally manufactured photos of minors who don't actually exist.
The second trend is the "for the children" excuse that no law ought to be questioned if its intent is to protect young people. The resulting paternalism is built in.
Put these together, and you get the intellectually vacant policy of prosecuting children for sexually exploiting themselves ... in order to protect them from the people who might exploit them.
It isn't exactly clear from what or whom the authorities are protecting these teens. To my knowledge, there hasn't been a single case of a predator who tracked down, then raped, killed, or otherwise physically harmed a minor after viewing explicit photos of the child on the Internet or via images forwarded by cell phone. Perhaps it has happened. But given the media obsession with these stories, if it's happened with any frequency at all, we would have probably heard about it by now.
The harm here seems to be the possibility that somewhere, someone other than the intended recipient of these photos may be masturbating to them. That's an uncomfortable thought, sure. But it's difficult to see how that presents tangible harm to the minors in the photos, certainly not to the point where the minors themselves ought to be prosecuted. Anyone turned on by the photos in Skumanick's case could just as easily placate themselves with an old Sears catalogueand with no resulting damage to the models who posed in it.
But the idea that an otherwise innocuous image can mutate into illegal child porn based on how it might be used by pedophiles is gaining currency. In 2006, officials indicted Alabama photographer Jeff Pierson on federal child porn charges for a Web site he ran featuring aspiring teen models. None of the models were nude, nor were any depicted engaged in any sexual activity. All the models' parents signed off on the photos.
Federal prosecutors, however, argued the models struck "illegally provocative," "lascivious" and "coy" poses that could entice pedophiles. In 2002, Republican Rep. Mark Foley of Florida (yes, that Mark Foley) introduced the Child Modeling Exploitation Prevention Act, which would have prohibited the sale of any photo of a minor. It failed, but crazy as Foley's bill sounds, it at least would have cleared up the ambiguity. As the Web site CNET reported in a story about Pierson, federal courts have made the definition of child porn so subjective, "judges and juries [are] faced with the difficult task of making distinctions between lawful and unlawful camera angles and facial expressions."
Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.