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Court Says Parents Can Block PA "Sexting" Prosecutions 383

Posted by timothy
from the and-maybe-they-can dept.
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."
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Court Says Parents Can Block PA "Sexting" Prosecutions

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  • Insanity (Score:5, Interesting)

    by sopssa (1498795) * <sopssa@email.com> on Thursday March 18, 2010 @02:02PM (#31525354) Journal

    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 [wordpress.com]. 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 (Score:5, Funny)

      by Lunix Nutcase (1092239) on Thursday March 18, 2010 @02:07PM (#31525406)

      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 (Score:5, Funny)

      by bmecoli (963615) on Thursday March 18, 2010 @02:08PM (#31525414)

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

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

      • Re:Insanity (Score:5, Funny)

        by Anonymous Coward on Thursday March 18, 2010 @02:13PM (#31525496)
        He said "every other teenager", not "every teenager".
    • Re:Insanity (Score:5, Insightful)

      by wizardforce (1005805) on Thursday March 18, 2010 @02:10PM (#31525444) Journal

      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: (Score:3, Insightful)

        by spidercoz (947220)
        seems to me they're trying to make up a crime where none exists
      • Re: (Score:3, Insightful)

        by sopssa (1498795) *

        So maybe they should raise their child correctly then?

        • Re: (Score:3, Insightful)

          by Eric52902 (1080393)
          But that's hard! I should be able to let the TV and video games raise my kids and use the courts to fill the gaps with ridiculous litigation!
        • Re:Insanity (Score:5, Insightful)

          by Bakkster (1529253) <(moc.liamg) (ta) (nam.retskkaB)> on Thursday March 18, 2010 @03:16PM (#31526656)

          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 (Score:5, Funny)

            by idontgno (624372) on Thursday March 18, 2010 @03:37PM (#31527094) Journal

            Martial punishment when young,

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

          • Sorry, the homo-eroticism of military life is not the way I want to raise my son.

      • 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.

        All about appearance? Not quite, those parents don't want to parent, instead they want the nanny state to parent. And soft on crime? What crimes? Victimless crimes? They s

      • Re:Insanity (Score:5, Insightful)

        by schon (31600) on Thursday March 18, 2010 @03:20PM (#31526732)

        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: (Score:3, Insightful)

          by Artifakt (700173)

          It's never about branding their own children. It's about the parents of 'perfect angel' Girl A demanding something be done to 'that pervert' Boy B, until Boy B's parents demand the same in reverse hoping that Girl A's parents will back down. Then the DA's office goes ahead and charges everybody they possibly can because:

          A. They don't want to look soft on crime.
          B. They have decided the parents are all damned idiots and deserve all the consequences.
          C. It gets the damned idiots to finally shut up.
          D. There's ju

        • Re: (Score:3, Insightful)

          by jesset77 (759149)

          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.

          ... Nooooo.... the solution is to have other people's children branded as sex offenders as scapegoats to put the fear of god in your own.

          Keep in mind, to a conservative, throwing other people under the bus is the most effective means of propulsion available. What leaves me truly transfixed from one day to the next is how imaginatively they invent new buses out of thin air for the purpose of conveniently throwing people under them. :D

    • Re:Insanity (Score:5, Insightful)

      by couchslug (175151) on Thursday March 18, 2010 @02:11PM (#31525458)

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

      • Re:Insanity (Score:5, Funny)

        by commodore64_love (1445365) on Thursday March 18, 2010 @02:19PM (#31525556) Journal

        Well sure.

        It wastes water. Didn't you watch Dune?

      • by Jaysyn (203771)

        Mod parent up!

      • Re:Insanity (Score:5, Funny)

        by Cro Magnon (467622) on Thursday March 18, 2010 @02:24PM (#31525632) Homepage Journal

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

        • That's Jewish though Christians say it too. However they add you can only multiply when granted a church license called marriage. Muslims along with some Christian sects also allow males to have more than one spouse, but females can only have one. Which is called polygyny [onelook.com] not polygamy [onelook.com]. Now if they allowed females to have more than one spouse as well as males then it would be polygamy.

          Falcon

      • Re: (Score:3, Interesting)

        by poetmatt (793785)

        it's not exactly a surprise that the same religious sect has the most teen pregnancies and such, either. However, don't throw judaism in with the christians. The christians are on their own on this one.

      • Re: (Score:2, Interesting)

        by theIsovist (1348209)
        Dear sir, Please rephrase your comment and magically watch as you move from -1 flame bait to insightful. watch and learn: "The issue with sex in America comes partially from America's Christian history. Many of our laws stem loosely from the laws written in the bible, and as such, there are many laws restricting sex and sexual expression. As we grow in maturity as a country, we now feel that some of these laws are outdated, and should be removed. However, there are still smaller sexually conservative
        • Re: (Score:3, Insightful)

          by RogerWilco (99615)

          It has nothing to do with writings in the bible.

          It has much to do with late-roman church fathers, influenced by mainly greek philosophers, creating dogma's that survive in Christianity to this day. Guys like Saint Augustin, who defined "sin" as currently interpreted by nearly all of the church. He basically argued that libido is the "the root of evil" (radix mali).

      • Re: (Score:3, Funny)

        by AlexBirch (1137019)

        Christianity, like the other desert superstitions, seeks to control and ration sex

        Oh, I thought marriage was designed to ration sex...

      • Re:Insanity (Score:4, Insightful)

        by GasparGMSwordsman (753396) on Thursday March 18, 2010 @04:54PM (#31528658)
        Please restrict your generalized bigotry.

        Grouping every person who ascribes to a belief into a single batch of crazy extremists is just what the Fundamentalist right does. If your goal is to act more like Glen Beck or for that matter, Joseph McCarthy, Stalin and the like, well then you are right on track. It is nothing short of blatant hate speech and un-educated bigotry.

        Just like the majority of people, the majority of Christians are sane, reasonable people. Just like the majority of the left are sane reasonable people. Also note that the majority of the left ARE Christians as well (half of all US Citizens are Christian).

        Every time a person stands up and says things like you have just done, it weakens the point of reasonable people. If you actually care about these issues, please spend some time doing some research. Then, after some contemplative time, say what your opinion is. If you really want something to change, also suggest a solution.

        If however, your goal is to just spew FUD. Well then, by all means continue.
    • Re: (Score:3, Insightful)

      by wurp (51446)

      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.

      • Sure, but prosecuting them for transmitting child pornography? That's fucking ridiculous.

      • Re:Insanity (Score:4, Informative)

        by JaredOfEuropa (526365) on Thursday March 18, 2010 @02:18PM (#31525536) Journal
        Sure, but do you educate, or forbid? The USA seems to focus on the latter, but when it comes to teen pregnancies, they sure seem to have a hell of a lot more of them than more liberal* countries.

        (* liberal meaning "free", not "leftie" though for some those two meanings are the same).
      • Re:Insanity (Score:4, Insightful)

        by TiggertheMad (556308) on Thursday March 18, 2010 @02:19PM (#31525552) Homepage Journal
        You sure as hell *better* interfere with your 16-17 year old's sex life.

        You presume that you will always make better choices than your children will? Interesting...
        • Re:Insanity (Score:4, Insightful)

          by Vohar (1344259) on Thursday March 18, 2010 @02:32PM (#31525788)

          An adult at least has experience to draw on. A "don't make the same mistakes I did" kind of thing, if nothing else.

          I remember how stupid I was at 16. So yeah, I -do- think odds are more in favor of the parents when it comes to such choices.

          • Re:Insanity (Score:4, Insightful)

            by Anonymous Coward on Thursday March 18, 2010 @02:48PM (#31526058)

            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: (Score:2, Insightful)

          by alexborges (313924)

          Id say he presumes he has the responsability for what the child does because, hell, its the law.

        • Re:Insanity (Score:5, Insightful)

          by dfenstrate (202098) <dfenstrate@NOSPaM.gmail.com> on Thursday March 18, 2010 @03:21PM (#31526752)

          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 (Score:5, Informative)

          by mcgrew (92797) * on Thursday March 18, 2010 @03:37PM (#31527110) Homepage Journal

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

          Spoken like a true teenager [pbs.org].

          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 (Score:5, Insightful)

            by swillden (191260) <shawn-ds@willden.org> on Thursday March 18, 2010 @06:42PM (#31530214) Homepage Journal

            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.

            • Re: (Score:3, Insightful)

              by russotto (537200)

              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.

              Such interpretations assume that "judgement" is an ability -- something inherent -- rather than a skill acquired and improved through u

      • by sopssa (1498795) *

        At that point you should had taught your kid to behave correctly and know about HIV and pregnant stuff. Hell, they even teach those things in school here. It's too late when they're already 16-17.

        • Re: (Score:3, Insightful)

          by wurp (51446)

          You should have taught them about the risks, absolutely. Teenagers are still horribly irresponsible, and repeated reminders at appropriate intervals are sensible (and needed).

          All MHO, of course.

      • You sure as hell *better* interfere with your 18 year old's sex life. Teenagers are stupid fuckers You sure as hell *better* interfere with your 19 year old's sex life. Teenagers are stupid fuckers You sure as hell *better* interfere with your 20 year old's sex life. Early twentiers are stupid fuckers You sure as hell *better* interfere with your 21 year old's sex life. Early twentiers are stupid fuckers You sure as hell *better* interfere with your 22 year old's sex life. Early twentiers are stupid fuckers
        • Re: (Score:2, Funny)

          by spidercoz (947220)
          you could probably write a script to do that for you
        • Re:Insanity (Score:5, Funny)

          by Jason Levine (196982) on Thursday March 18, 2010 @02:27PM (#31525690)

          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!!!"

      • Only if they're "abstainers". Me and my girlfriend have sex. But we use Condoms & Birth Control, not saying it can't statistically happen, but we cover all the bases.

        Teach kids that sex will (hopefully) happen and show them where to buy condoms. Planned parenthood gives them out for free, same with birth control. I don't think you have to be 18+ to buy condoms at any Walmart or pharmacy.

        So yes, "interfere" by educating them not ignoring that it's a possibility.

        • by barzok (26681)

          I don't think you have to be 18+ to buy condoms at any Walmart or pharmacy.

          Not yet, anyway. That day will come, I'm sure. Especially in abstinence-only education states.

      • Re: (Score:3, Informative)

        by Hatta (162192)

        By "interfere" you mean "buy them condoms", right?

      • If a teenager is too stupid to use a condom, they won't use a condom when they're 30.

        I knew I wasn't stupid enough bareback because my parents didn't interfere with my sex life, aside from stressing the important of a condom. Had they forbidden it (in the process neglecting to discuss condoms), I would've done it ungloved.

        Why do people think that 16-17 year olds get a whole lot smarter when they turn 18? Or hell, even 30. You don't mature all that much from 16; if you're immature at 16 you'll be immature at

      • Re:Insanity (Score:5, Insightful)

        by falconwolf (725481) <falconsoaring_2000NO@SPAMyahoo.com> on Thursday March 18, 2010 @02:48PM (#31526064)

        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 (Score:5, Insightful)

      by commodore64_love (1445365) on Thursday March 18, 2010 @02:16PM (#31525522) Journal

      >>>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 (Score:5, Informative)

        by Hatta (162192) on Thursday March 18, 2010 @02:37PM (#31525870) Journal

        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 (Score:5, Insightful)

        by tomthepom (314977) on Thursday March 18, 2010 @02:52PM (#31526168)

        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 (Score:5, Insightful)

      by wisnoskij (1206448) on Thursday March 18, 2010 @02:26PM (#31525662) Homepage

      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: (Score:3, Insightful)

        by elrous0 (869638) *
        "Zero tolerance" all-too-often ends up translating to "Zero common sense."
    • Re:Insanity (Score:5, Interesting)

      by wiredog (43288) on Thursday March 18, 2010 @02:26PM (#31525664) Journal

      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: (Score:3, Insightful)

        by Hatta (162192)

        Teenagers, having fewer preconceptions are more likely to apply rationality to their decisions. Adults are set in their ways and less open to new ideas, even if they are better. I don't think either group has a monopoly on being irrational.

    • Re: (Score:3, Insightful)

      by Jawn98685 (687784)
      No argument on the hypocrisy. It's an annoyingly stubborn leftover from our puritanical roots, and many of us (fundies, mostly) are all about pretending that our "founding fathers" were possessed of superior "moral fiber". The result is the staggering collection of hangups that make a naked boob a national disaster but someone's bullet-riddled naked spleen just good, clean fun.
      On the other hand, I take issue with the notion that 14-16 year olds are capable of understanding sex. In this country they are d
    • 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.

      For some very reasonable definitions of "parent", being a good parent often has little to do with what a parent wants to do, or what their kids want. And that's no less true for teenagers than for toddlers.

    • can result in fatal or permanently life-altering disease

      and, of course, pregnancy. duh

      combine this with the fact that teenagers are universally fucking retarded (they're green, they're psychologically immature), and it makes a hell of a lot of sense to bind sex up in taboos and rules

      sex is immensely pleasurable. its also an emotional minefield. there is no such thing, nor will there ever be, a successful human society with a cavalier attitude towards sex. sex is extremely powerful. as such, it is treated, a

    • by g0bshiTe (596213)
      I am a parent and yes I want to interfere to educate my daughter about having safe sex vs unprotected sex. Otherwise my child is free to send any pictures they like or possess any they like, we all can be taught, but we still have to make our own mistakes.
    • Re:Insanity (Score:5, Insightful)

      by UnknowingFool (672806) on Thursday March 18, 2010 @02:36PM (#31525866)

      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: (Score:3, Interesting)

        by Nyder (754090)

        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.

        So they DA, without giving some people their due processes, told them to attend this class or we are going to press charges against you?

        Isn't that illegal? The DA can't tell you what to do. At the very least, it's a big step out of his job duties.

        I understand a DA can decide to charge you or not charge you for a crime, but for him/her to tell you to go to a class or get taken to court is just a bit much. Abuse of power, imo

    • by mcgrew (92797) *

      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

      When I was just learning to read there was a family get together, and my mom sent me to the store to buy napkins and paper plates. I bought the best napkins -- the sanitary ones. I couldn't figure out why my mom and my aunts thought it was so funny.

    • by Locke2005 (849178)
      If I was a parent I wouldn't want to interfere with my 6 year old playing in the street, and I sure as hell didn't want my parents to interfere with my playing in the street when I was that age. But they did, and somehow I survived to have children of my own. STDs and pregnancy are rampant in teenage girls, precisely because as a group they are known for making bad decisions! Yes, they learn by making their own decisions and facing the consequences, but there are some choices with potentially permanent cons
    • 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".

      I certainly agree with the general argument here. If you can have sex legally, you should legally be able to send dirty pictures.

      On the other hand, "can" and "should" are two different things.

      15-16 year old is perfectly capable to understand sex.

      Teenagers are perfectly capable of understanding what sex is, and they can certainly figure out how it works. But are they capable of considering repercussions of those actions? Millions of unplanned teenage pregnancies (many of them followed by abortions or people dropping out of school, etc.) say otherwise.

      Sho

  • It would likely depend on how these pics were found. If they were found on a phone confiscated at school, where's the search warrant?

    • Re: (Score:2, Informative)

      by spidercoz (947220)
      foolish ninja, schoolchildren don't have the same rights as real people, something I railed against when I was one
  • Wait a second.... (Score:5, Insightful)

    by NeutronCowboy (896098) on Thursday March 18, 2010 @02:23PM (#31525612)

    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.

  • So the school staff stole the phones from the students and then found pictures on them... I think there are multiple grounds to get these cases thrown out of court.
    • by barzok (26681)

      So the school staff stole the phones from the students and then found pictures on them... I think there are multiple grounds to get these cases thrown out of court.

      The school can likely make a strong argument using in loco parentis [wikipedia.org] depending upon the circumstances around the confiscation of the phone.

  • So this sexting thing is labeled as child porn yet this isn't: http://www.allmusic.com/cg/amg.dll?p=amg&sql=10:0ifyxqq5ld6e [allmusic.com]

    C'mon people! I continue to be amazed at our country's puritanical stance on sex overall. Yes, child porn and abuse is a VERY bad thing and should be punished by the extreme measures of the law (yes Catholic Church...I'm talking to you) but this kind of stupidity is not acceptable. And as a parent of three, you better believe that I will be on them about sending ANY kind of picture

    • What about nude photos of children.. that are kept in a box until the children turn 18 and then those now-adults decide to release the photos? My heads asplode
      • by Khan (19367)

        Dude...that made no sense whatsoever. Lay off the drugs already. You'll be happier.

  • by Locke2005 (849178) on Thursday March 18, 2010 @02:30PM (#31525746)
    Why isn't it illegal for the school officials to be in possession of nude pictures of underage children?
    • Re: (Score:3, Funny)

      It ought to be illegal to even SEE nude pictures of underage children. Everybody involved should be in jail! If we don't keep the children safe, how will they ever grow up to enjoy the dystopic world we're building for them by keeping them safe?

  • For those seeking more background on the general insanity of this story and "sexting" in general, see Slate.com's Textual Misconduct [slate.com] and the Economist on America's unjust sex laws: An ever harsher approach is doing more harm than good, but it is being copied around the world [economist.com]. The latter is tangentially related to the main issue but nonetheless useful.
  • by nitrowing (887519) on Thursday March 18, 2010 @03:11PM (#31526560)
    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? (Score:5, Informative)

    by russotto (537200) on Thursday March 18, 2010 @03:23PM (#31526790) Journal
    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.

    • At this preliminary stage we conclude that plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that Doe committed a crime, but instead in retaliation for Doe's exercise of her constitutional rights not to attend the education program. Therefore, we affirm the grant of a preliminary injunction and remand for further proceedings

      The judges are asserting that there is a likelihood that the prosecutor was retaliating by threatening to prosecute

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