Monday, August 16, 2010

The Tunkhannock Effect

What we're learning about sexting, the First Amendment and prosecutorial authority
The Pennsylvania Law Weekly
August 16, 2010

In the fall of 2008, officials from Tunkhannock Area School District in Wyoming County confiscated and turned over to the local district attorney a number of student cell phones suspected of having nude and semi-nude photographs of students. What happened next set in motion a series of events that have altered the legal and political landscape of not only Wyoming County, but of the whole of Pennsylvania, as well.

In less than two years, a federal district court took the unusual step of granting an injunction preventing the county's district attorney, George Skumanick Jr., from filing criminal charges; Skumanick lost his bid for re-election; the General Assembly has taken steps to criminalize the alleged conduct; and a second federal lawsuit has been filed by a former Tunkhannock student alleging school officials illegally searched her cell phone.

The electronic distribution of nude or explicit photographs by cellular telephone has come to be known as "sexting" — a derivation of the commonly used term for transferring electronic text messages by cell phone, "texting."

When the photographs were discovered, the Tunkhannock Area School District felt that the matter was more than school misconduct, they suspected criminal activity. The district attorney thought the photographs rose to the level of felony, sexual abuse of children.

The statute, 18 P.S. 6312, makes it a felony to possess or distribute images depicting a minor engaged in "sexual intercourse, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction."

Last year, Skumanick told Wired magazine, "Just depicting nudity could be considered a sex act."

Skumanick was looking for a way to hold the students accountable, teach them some life lessons and not burden them with a criminal record and designation as a sex offender. Skumanick's goals may have been laudable, but the means used to achieve those goals were anything but perfect.

Skumanick's plan failed at every turn and the repercussions are still not fully known.

Initially, Skumanick addressed a student assembly. He told students that possessing inappropriate images of other students could result in criminal prosecution under state law prohibiting the possession of child pornography. Skumanick emphasized that a conviction could result in a felony record and the possibility of spending up to seven years in prison.

A conviction would also impose reporting requirements pursuant to Megan's Law, he told the students.

The district attorney then sent letters to 16 students — 13 girls and 3 boys — who either appeared in the images or possessed the images that were on the confiscated cell phones.

During a meeting with the students and their parents, Skumanick made it clear that he would file felony charges against the students unless they agreed to six months of probation and participated in a five-week education program. The program was designed in part by the district attorney's office. He gave the parents 48 hours to respond.

Thirteen students agreed to Skumanick's terms.

The parents of three girls refused the deal. Skumanick then threatened to charge the girls pursuant to the child pornography statute. The parents of those three students filed a lawsuit to enjoin Skumanick from filing criminal charges.

A federal district court granted the injunction requested by the students and their parents and no criminal charges were filed. Skumanick's office responded by filing an appeal to the U.S. 3rd Circuit Court of Appeals.

In the meantime, Skumanick lost his bid for a sixth term to former public defender Jeff Mitchell by about 500 votes out of 5,651 votes cast.

Mitchell told the Scranton Times Tribune that the Tunkhannock case, "became too much of a media circus."

In late March, the 3rd Circuit ruled that the injunction was properly granted. The court ruled that a text that is not found to be child pornography is protected by the First Amendment.

The court was also clear that a prosecutor, however well intentioned, does not have a role in the upbringing of children.

The opinion in the case, Miller v. Mitchell, stated that school officials have a "'secondary responsibility'" in the upbringing of children and "in certain circumstances the parental right to control the upbringing of a child must give way to a school's ability to control curriculum and the school environment."

The court went on to find that "[t]he District Attorney is not imbued with that same 'secondary responsibility.' Indeed, we find no support for this proposition in any related statute, regulation, or case. The district attorney is not a public education official, but a public law enforcement official."

Skumanick's good intentions went beyond his authority.

In the aftermath of Tunkhannock, the legislature has begun to address the issue of sexting in a more formalistic manner.

State Rep. Seth Grove, R-York, introduced a bill that would impose a misdemeanor of the second degree for teens caught sexting. When the bill was introduced Grove said "[t]eenagers need to get the message that sending a nude photo — even of themselves — is a crime, and they can be punished for sending these images."

Several weeks ago, the House passed Grove's version of the bill with some amendments, including a provision providing for a summary offense if a minor knowingly transmits a visual depiction of himself or herself engaging in sexually explicit conduct, and the image is sent to another teen who is known to the sender and a willing recipient.

The legislation defines "sexually explicit conduct" as "lewd or lascivious exhibition of the genitals, pubic area, breasts or buttocks. Nudity, if the nudity is visually depicted for the purpose of sexual stimulation or sexual gratification of a person who might view the depiction."

The bill now moves to the Senate Judiciary Committee.

State Sen. Stewart J. Greenleaf, R-Montgomery, who chairs the committee said, "What I'm trying to do is provide an alternative so that the prosecuting attorney can file something against them if appropriate without giving them a criminal record."

Grove commented: "Decriminalizing these acts would be, in a way, sanctioning sexting, and could lead to the exploitation of our youth."

The final wave of fallout from Tunkhannock is the recent filing of a federal lawsuit not only against the Wyoming County District Attorney's Office, but also against the Tunkhannock Area School District.

As previously reported in The Legal, the lawsuit alleges that cell phones have become one of the most important storage devices for private material.

The suit alleges, "cellular telephones store large amounts of personal and often very private data, including lists of contacts, text messages, photographs and videos. A search of the device is akin to browsing through someone's address and appointment book, opening and reading letters sent by U.S. mail, and rummaging through a family photo album or viewing home videos."

The suit raises an interesting question — can a student's cell phone be searched without "reasonable suspicion?" The Tunkhannock Effect continues to ripple across the state.

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