A Pennsylvania appellate court upheld a preliminary injunction on Wednesday barring local prosecutors from filing felony child-porn charges against a teenage girl who took a partially nude photo of herself with her cellphone.

The court said prosecutors were using the threat of charges as retaliation against the teen for exercising her constitutional right to refuse a voluntary reeducation program favored by the district attorney. The court also determined it was likely the girl and her parents will succeed in a civil rights lawsuit they've filed against the district attorney's office.

Last year, District Attorney George P. Skumanick, Jr., threatened to charge three teenage girls with felony child-porn violations over digital photos they took of themselves.

The American Civil Liberties Union of Pennsylvania filed a federal lawsuit against Skumanick on behalf of the girls and their parents accusing Skumanick of violating the girls' civil rights. The suit said they had a constitutionally protected right to appear in the pictures and that the threat to prosecute the minors was "unprecedented and stands anti-child-pornography laws on their head."

The ACLU won a preliminary injunction in the U.S. District Court in Pennsylvania barring the prosecutor from bringing criminal charges against the three girls, which the court granted. Skumanick appealed.

The case dates back to October 2008, when officials of the Tunkhannock School District in Wyoming County, Pennsylvania, discovered that male students were trading photos on their phones of female students in various states of undress. Officials confiscated the phones and turned them over to District Attorney Skumanick.

Skumanick told an assembly of students that possessing inappropriate images of minors could get them prosecuted under state child-porn laws and, if convicted, they would face a possible seven-year sentence and a felony record. Under a state law, they would also have to register as a sex offender for 10 years and have their name and photo posted on the state-s sex-offender website.

The prosecutor also sent a letter to about 16 students – three boys and 13 girls – who either appeared in the images or were found in possession of them. In a meeting with the students and their parents, he said he would file felony charges against the students unless they agreed to six months of probation, among other terms. He gave the parents 48 hours to agree.

The parents of three girls refused to sign. Skumanick then threatened to charge the girls with producing child pornography unless their parents agreed to the probation and sent the teenagers to a five-week, 10-hour education program. The program was designed in part by the district attorney's office to discuss why what they did was wrong and what it means to be a girl in today’s society. The girls would also have to submit to drug testing.

When one parent asked Skumanick how his daughter, who appeared in a picture wearing a bathing suit, could be charged with child porn, Skumanick responded that she was posing "provocatively," according to court documents.

The parents of three teenaged girls balked at the threats and filed the original suit against Skumanick.

While the decision was on appeal, Skumanick determined that he would not bring criminal charges against two of the teens, so the injunction upheld this week applies only to one girl, identified as "Nancy Doe" in court documents. The girl had photographed herself outside a shower with a towel wrapped around her waist and her breasts bared.

The state law makes it a felony to possess or distribute images depicting a minor engaged in a sex act or the "lewd" depiction of genitalia or nudity that is meant to arouse or titillate. "Just depicting nudity could be considered a sex act," Skumanick told Threat Level last year, adding that the shower photo "is child porn under the statute."

Skumanick was voted out of office last year, but the lawsuit continues against the current district attorney's office.

In addition to accusing prosecutors of violating the civil rights of the teens, the suit accuses the DA of violating the parents' 14th Amendment right to direct their children's education and upbringing by forcing the students to participate in the DA's program. In ruling against the DA's office, the appellate court stated the prosecutor does not have authority to "coerce parents into permitting him to impose on their children his ideas of morality and gender roles."

The practice of taking nude or semi-nude self-portraits and distributing them via a cellphone or the internet has come to be called "sexting" and has resulted in teens being arrested in a number of states under child-porn production, distribution and possession charges.

Photo: AP

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