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Pennsylvania Supreme Court reinstates child porn charges in Lehigh County sexting case

1-25-2014 Pennsylvania:

Top state court says county judge erred in dismissing porn charges against girl.

A video of a teenage girl and boy engaged in a sex act circulated among Allentown youths for at least a year before another girl was charged with possession and distribution of child pornography for posting it on Facebook.

Although a Lehigh County judge agreed with the girl's attorneys that the charges were "an overreaction by law enforcement" and dismissed them in 2012, the state Supreme Court on Thursday reversed his decision.

The girl, identified in court papers only as C.S., must return to Lehigh County juvenile court to face felony charges in a case that raises new questions about where poor judgment by sexting teens ends and criminal exploitation by child pornographers begins.

Lehigh County Assistant District Attorney Heather Gallagher said police and prosecutors do not believe what C.S. did was sexting, the term used to describe the practice of sending sexually explicit photos, videos or messages using cellphones or computers.

Because the material C.S. allegedly shared was a video depicting a sex act, a 2012 amendment to the state's child pornography law that created a less serious charge for teens who send or receive simple nude photos would not apply in C.S.'s case, Gallagher said.

"If this case occurred now, the juvenile would be charged with the same crime that she was charged with before," Gallagher said.

But defense attorney Andrea Olsovsky said her client's actions weren't the kind legislators intended to prevent when they passed the state's child pornography law.

Olsovsky said sharing photos or videos voluntarily created by teens lacks the elements of abuse and exploitation minors suffer when they appear in pornographic material.

"She's essentially charged with the same thing that someone would be charged with if they disseminated images of a 4-year-old being sexually abused," Olsovsky said Friday.

In a 2012 opinion on Olsovsky's motion to dismiss the charges, Lehigh County Judge Robert L. Steinberg agreed, calling the use of child pornography laws to punish the practice a "round hole/square peg approach."

In his decision dismissing the charges, Steinberg wrote the state's child pornography law was clearly created to prevent the abuse and exploitation of children and cut off the supply of child pornography.

"Those who are adjudicated or convicted of child pornography offenses are sexual offenders and often predators," Steinberg said. "Teenagers who engage in sexting should not face the same legal and moral condemnation."

But Steinberg went a step further, finding the state's child porn law, as it was applied to C.S., is unconstitutional because it "fails to provide a teenager of ordinary intelligence 'fair notice' of what is prohibited."

In an appeal before the Supreme Court, prosecutors argued that Steinberg overstepped his authority by dismissing the charges on grounds that the defense didn't raise.

In a one-page order Thursday, the justices agreed, saying Steinberg erred by acting as an advocate for C.S. and raising a defense not put forth by her attorneys. When the case comes back to Lehigh County, C.S.'s attorneys will be barred from raising the argument that the law, as applied, is unconstitutional, the decision says.

With the rise of camera phones and text messaging, sexting has been an issue around the country.

Wyoming County District Attorney George Skumanick Jr. attracted national attention and a lawsuit by the American Civil Liberties Union in 2008 when he took on the issue of sexting in a northeast Pennsylvania middle school.

He offered nearly two dozen girls and their parents the opportunity to avoid prosecution for child porn if they agreed to attend a five-week education program. Those who rejected the offer sued and won a federal court decision blocking the charges.

Locally, Lehigh County District Attorney Jim Martin in 2008 threatened to file child porn charges against dozens of Parkland High School students after images of nude underage girls circulated on cellphones. No one ended up being charged.

Last year, several photos of nude Emmaus High School students popped up on a pornographic website.

The phenomenon of nude photos and videos being shared among adults without consent or even used for blackmail has prompted state Sen. Judy Schwank, D-Berks, to take on the issue of "revenge porn."

She is sponsoring a bill, due for a vote soon in the Senate, that would create penalties for adults who share nude or sexual images of their partners without consent. Schwank said the bill doesn't provide for charges against juveniles who engage in such conduct.

In their brief to the Supreme Court, lawyers for C.S., who include Marsha Levick of the Juvenile Law Center in Philadelphia, broadly question how Allentown and Lehigh County authorities handled the case.

They noted that the video was voluntarily created by two teens — a girl, 16, and a boy, 17 — at least a year before C.S. was charged. The boy later shared the video with several other youths including C.S., court papers say.

Although the girl who appeared in the video complained to Allentown police on at least two occasions that he had shared it, the boy was not charged despite ample evidence that he had the video on his cellphone and posted it on the Internet, according to court documents.

"At the time that happened, he technically would have been in possession of child pornography," Olsovsky said.

C.S., who admitted posting the video to Facebook when confronted by an Allentown detective, was the only person charged, her attorney noted in court filings.

Olsovsky said the only clear intent her client had was to harass the girl who appeared in the video and that a harassment charge would be appropriate.

No date for another hearing on C.S.'s case has been scheduled. ..Source.. by Peter Hall

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