Lawsuit aims to block 'sexting' charge against teen
An Iowa prosecutor is threatening to bring a sexual exploitation charge against a teenage girl who sent two photos of herself to a high school classmate, even though the pictures contain no nudity, according to a lawsuit filed Wednesday.
Marion County Attorney Ed Bull has said the teenager could have to register as a sex offender if a juvenile court judge found her delinquent for sending the Snapchat photos, according to the lawsuit.
The girl and her parents are asking a federal judge to issue an injunction that would block Bull from prosecuting the teen, a freshman and athlete at Knoxville High School when she sent the photos in March, according to the complaint. The lawsuit argues the county attorney is trying to punish behavior that wasn't criminal and enforce discipline that would be better handled by the family.
Further, the U.S. Constitution protects free speech and expression, and should protect the girl from punishment if the images are not obscene, said advocates and the family's attorney.
"It is clearly a violation of the First Amendment for a prosecutor to credibly threaten to bring criminal charges for protected speech and expression," said Rita Bettis, legal director for the American Civil Liberties Union of Iowa. "While courts have held that child pornography is not protected under the First Amendment, in this case, there appears to be a real factual question about whether the image itself was child pornography."
One of the photos the student took of herself in her bedroom mirror showed her wearing a sports bra and boy shorts, a style of underwear. The second photo showed the girl topless and wearing the same underwear, but her hair was covering her breasts.
“What’s the difference between sending these photographs and someone sending photographs of themselves in a bathing suit to their significant other," said Glen Downey, a Des Moines civil rights attorney representing the family. Pseudonyms are used to identify the girl and her family in the lawsuit in an effort to protect her identity, Downey said.
The photos were gathered by law enforcement earlier this year amid a "sexting" investigation that uncovered nude and semi-nude photos sent by several male and female students at the high school. Sexting involves sending sexually explicit photographs or messages via cell phone or other mobile devices.
The photos came to light earlier this year when two male students were caught printing photos in the Knoxville High School library.
Prosecutors nationwide have struggled with how to handle sexting cases among teenagers amid fears that swapping nude photographs can lead to harassment, cyber bullying and manipulation by romantic partners or others. A Drexel University study of college students published in 2014 found that nearly half of those surveyed admitted to sexting as juveniles and being unaware of the consequences — which can include charges for possession of child pornography.
The lawsuit argues that to meet the definition of "nudity" under Iowa law that could warrant criminal prosecution, a photo would have to show "any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of a female." The teenager was similarly not doing anything in the photos that could be considered a "sex act" under Iowa law, the lawsuit claims.
As recently as Sept. 20, Bull has threatened through a lawyer to prosecute the teenager in juvenile court unless she participates in a diversion program that was completed by other students who were caught in the investigation. The program includes a class about the dangers of sexting, community service, restrictions on the teenager's cellphone and computer use, and a written admission of guilt, according to the lawsuit.
However, Downey said the parents are taking the matter to a federal judge because they feel their daughter is being "lumped in" with other students who actually sent nude photos. “They consider this a personal matter that requires their parenting skills, not criminal court intervention,” he said.
"The minor in the photos, Nancy Doe, is, if anything, the victim in this case," Downey wrote in the lawsuit. "Someone else — not her — disseminated the photos without her permission to a large group of people."
Bettis said it "defies common sense" to punish a girl with a sexual exploitation of a minor charge when she is both the offender and victim in the scenario.
"These laws weren't intended to apply to children and we're doing a lot more harm than good in these situations," said Nicole Pittman, director of the Center on Youth Registration Reform. "And resources are being used to prosecute a young woman and harm her for the rest of her life."
Bull defended his office's handling of the case in a statement released to the press. He also said he would make a decision in handling the teenager's case "without regard" to the lawsuit.
“This lawsuit is the result of efforts made by my office to respond to a situation where numerous juveniles had exchanged sexually explicit photographs," Bull said. "Rather than take every juvenile to court I looked for a solution that would help them learn from their mistakes and hopefully prevent their behavior from being repeated, while allowing them to avoid having a criminal or juvenile conviction or even a charge on their record."
“We will vigorously contest the allegations in this lawsuit," the statement said. "They are without merit."
Alan Ostergren, president of the Iowa County Attorneys Association, also said that Bull made the appropriate move by trying to convince the girl to enter a diversion program. He also doubted that a federal judge would look to intervene in the state proceedings before any charges have been filed.
“You look for a way to resolve the problem in a way that would allow these young people to avoid a criminal charge in juvenile court," said Ostergren, who also serves as the Muscatine County attorney. "He sought to provide something that would be educational and rehabilitative, that these young people could learn a lesson about responsible behavior and not have to see the inside of a courthouse.”