LEHIGH COUNTY, Pa.—In a move that may have the effect of branding a teenage girl—and possibly hundreds more—as a "sex offender" for life, the Pennsylvania Supreme Court has reinstated child porn charges against the girl, known in court papers only as "C.S.", who posted a hardcore video of two of her teenage friends on Facebook.
C.S. was originally charged with violations of 18 Pa.C.S. §6312, "Sexual Abuse of Children," for having "disseminated" the video in violation of subsection (c) of the law, and also under subsection (d), "Child Pornography." However, in 2012, Lehigh County Judge Robert L. Steinberg dismissed those charges, ruling that the law was unconstitutional as applied to C.S. because it "fails to provide a teenager of ordinary intelligence 'fair notice' of what is prohibited."
Trouble was, C.S.'s attorney, Andrea Olsovsky, hadn't argued that point during the original hearing. Rather, she had argued that §6312 didn't apply to her client because, according to a report in the Allentown Morning Call, "sharing photos or videos voluntarily created by teens lacks the elements of abuse and exploitation minors suffer when they appear in pornographic material."
That argument would appear to track one of the "Exceptions" noted in §6312(f), which states, "This section does not apply to any of the following ... (2) Conduct prohibited under section 6321 (relating to transmission of sexually explicit images by minor), unless the conduct is specifically excluded by section 6321(d)."
Section 6321, titled "Transmission of sexually explicit images by minor," clearly states that it is a "Misdemeanor of the third degree" when "Except as provided in section 6312, a minor commits a misdemeanor of the third degree when the minor knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of another minor who is 12 years of age or older." And as long as that dissemination is not for commercial purposes, Section 6321(d) does not apply.
In any case, Judge Steinberg appeared to agree with Ms. Olsovsky's argument, stating, "Those who are adjudicated or convicted of child pornography offenses are sexual offenders and often predators. Teenagers who engage in sexting should not face the same legal and moral condemnation." But then he took that argument a bit further in saying that the law was so vague that a "teenager of ordinary intelligence" would be unable to tell just which images were prohibited and which weren't. It was this latter statement that the state Supreme Court disagreed with.
"The court erred when it sua sponte ["on its own"] raised a vagueness challenge to 18 Pa.C.S. §6312 and declared the statute unconstitutional on that basis," the high court unanimously ruled.
The ruling flies in the face of recently enacted laws in several states that create reduced liability for teenagers who post nude or sexually explicit photos or videos of fellow teens on social media, or send them via email. In fact, in 2008, Lehigh County District Attorney Jim Martin threatened dozens of Parkland High School students with child porn charges for having emailed images of nude teenage girls to classmates, but in the end, no charges were filed. Indeed, the ABA Journal noted that the boy who gave C.S. the sexually explicit video to post had also shared that video with several other teens, and even posted it on the internet, but he was not charged at all in the case—perhaps because that would have put the boy in the interesting legal position of being both a "child pornographer" and a "victim" at the same time!
The case has been remanded to the Pennsylvania Court of Common Pleas for trial.