Judge Temporarily Bars Prosecutor from Charging Teens for Child Porn Pics
I know some kids elsewhere in PA who *are* REALLY mad now that they didn't call the ACLU.
The American Civil Liberties Union of Pennsylvania sued the district attorney on behalf of the teens and their parents on grounds that the DA was violating their civil rights. The plaintiffs said the images didn't qualify as child pornography under Pennsylvania's laws and therefore the prosecutor was prohibiting their free expression to take photos of themselves. They also claimed the attempt to force the parents to put the girls in an educational program violated their Fourteenth Amendment rights.
U.S. District Court Judge James M. Munley granted the temporary restraining order on grounds that the plaintiffs stand a reasonable chance of winning their suit against the prosecutor. The judge didn't comment on the merits of their claims against the prosecutor other than to say that the "plaintiffs 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."
"We are grateful the judge recognized that prosecuting our clients for non-sexually explicit photographs raises serious constitutional questions," said Witold Walczack, legal director for the ACLU of Pennsylvania, 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 from sexting.”I totally agree. Over reaction central.
On that note here is a story about a 60 year old School Principal who was trying to do his job and the DA went nuts on him and almost ruined his life. Its a rather long story. so here are some quotes if you don't want to read it.
'Sexting' Hysteria Falsely Brands Educator as Child Pornographer
OK... This seems reasonable enough. He tried. REMEMBER the description of the picture.
Oei's problems began in March of last year, when his investigation of sexting rumors at Freedom High led him to a 16-year-old boy. Oei and the school's safety and security specialist met with the student to ask if he knew anything about the photos.
"He says, 'Oh yeah, I've got one on my cell phone,'" Oei recalls.
The image depicted the torso of a teen girl -- later determined to be a 17-year old student -- wearing only underwear, her arms mostly covering her breasts. The boy claimed he didn't know who sent him the photo or who the girl was.
Oei says he showed the image to his boss, Principal Christine Forester , who told him to preserve a copy on his office computer for the investigation. A computer neophyte, Oei didn't know how to transfer the image from the boy's cell phone, so the teen sent the picture to Oei's phone, and told him how to forward it to his work e-mail address. When the process was complete, Oei instructed the student to delete the image from his phone.
Oei and the school security specialist interviewed more students, but were unable to find additional pictures or identify the girl in the photo. Oei concluded she probably wasn't a student at the school. Relieved, he says he reported his findings to the principal, thinking the matter was done.
Poor guy didn't know about the railroad that was about to hit him.
Two weeks later, the boy caught with the photo was in trouble again -- he'd pulled down the pants of a girl in class. The school suspended the student for 10 days. But when the boy's mother learned from Oei about the earlier photo incident, she was outraged that Oei hadn't reported the picture to her. She called his house at 7:00 a.m., screaming at him that the suspension had to be revoked.
When Oei refused, the woman went to the police about the photo. Sheriff's investigators came to the school, ostensibly to investigate the sexting issue. They helped the technologically-challenged Oei recover the photo from his cell phone and later determined the girl in the photo was a student at the school.
That is terrible that his own boss threw him to the wolves like that.
A month later, the first charges were filed against Oei: failure to report suspicion of child abuse, a misdemeanor. The charge alleged that Oei had a legal duty to report the girl's photo to the 16-year-old boy's parents, and to state agencies or law enforcement.
"First of all, nobody thought this was reportable," Oei says. "Who would have thought this was suspected child abuse?"
The prosecution looked like an error right out of the gate. The photo didn't show sexual activity or genitalia, and even the sheriff's office conceded it was "inappropriate" but not "criminal" -- making it unclear what the "child abuse" was supposed to be. In any event, as a matter of law, Oei was only required to report suspected abuse to his principal, which he'd done. It was then Forester's job to report it to authorities if needed. Oei said Forester didn't step in to defend him to authorities. (Forester didn't return phone calls for this story)
But rather than drop the misapplied charge, Loudoun County prosecutor James Plowman upped the ante. The prosecutor gave Oei an ultimatum: resign, or see his misdemeanor charge bumped up to a felony. "We just feel very strongly that this is not someone who should be in the Loudoun County school system," Plowman's assistant explained to reporters. Oei refused, and on August 11, a grand jury indicted him for possession of child porn, a crime that carries a possible sentence of five years. The misdemeanor charge was dropped.He should have never been charged and SHAME on the grand jury for going along with this.
He lost 15 pounds, and couldn't sleep. His wife, already struggling with a serious health issue, became paranoid.Warned that their house could be searched, Curling went through the family photos to see if there were any baby pictures of their now-grown children in a state of undress. "Heaven forbid that a parent might think it was cute for a baby to play in a bubble bath and there might be an inappropriate part showing," she says. "Luckily all of our rubber-ducky baby photos had the children covered in bath bubbles or something."Now that is a damn shame. I have lots of pics of Julia... Playing in the bath, running around the house from me naked, Do i have to do this to?
Four months later, Plowman charged Oei with two more misdemeanor counts for contributing to the delinquency of a minor, claiming Oei broke the law when he had the 16-year-old boy send the photo to his cell phone and advise him on how to then forward it to his desktop computer. Each count added another year to his possible prison term. "The December charges really felt like piling on," Oei says.
Now that is some rude bullshit right there. And finally some help from a sensible Judge.
Finally, and the DA can't admit he made a mistake.
Then last month, Oei's defense attorney, Steven Stone, filed a motion to dismiss the charges on the grounds that the photo didn't constitute child pornography. In a ruling on Tuesday, Loudoun Circuit Court Judge Thomas Horne agreed. Citing a long history of state appeals court decisions, Horne noted that nudity alone is not enough to qualify an image as child pornography. The image must be "sexually explicit" and "lewd."
"As a matter of law, the photograph does not meet the requirements established by our appellate courts and the felony charge will be dismissed," the judge wrote. "[T]he two misdemeanor counts will be dismissed as well."
HE DIDN'T DO ANYTHING.
Plowman insists he never intended to seek prison time for Oei. He would have been satisfied with a fine, probation and Oei's resignation. The case would never have gone this far, he says, if Oei had resigned when asked.
"I thought that was a just and appropriate sanction for his behavior," he says. "But he was unwilling to be responsible for any kind of accountability for what he did."
People are freaking crazy. I am glad the Judge stopped the madness.