The threat of charges, raised by Marion County Attorney Ed Bull as a response to a sexting sting at Knoxville High School, would brand 14-year-old “Nancy Doe” (whose identity is being protected in the suit) as a sex offender, along with several other students. But unlike the photos of other students — which were discovered earlier this year when two male students were caught printing copies in the school library — the teen in question wasn’t nude. (In the one photo that showed her topless, the girl’s hair obscured her nipples).
And now the teen’s parents are fighting back on their daughter’s behalf by suing Bull, both for his threat of the sex-offender charge and for demands, including Doe enter a pretrial diversion program, sign a statement admitting her guilt, and give up her laptop and phone. While the other teens involved took the deal — offered at a meeting held at the court during which, according to the lawsuit, Bull was “slut-shaming” the girls — Doe did not.
“Since there is no basis to prosecute the girl for posing in photographs that plainly are not child pornography, in terms of content or production, Bull’s threat to prosecute the girl must be considered retaliation against the plaintiffs for asserting their constitutional rights — the parent’s right to direct their children’s upbringing and the girl’s rights both to free expression and against compelled speech — in refusing Bull’s demands,” noted the lawsuit, filed in a U.S. District Court on Sept. 28.
The suit seeks an injunction that would block Bull from prosecuting the teen, arguing that family discipline would be more appropriate in this case.
Bull’s office, in a statement, notes, in part, “We will vigorously contest the allegations in this lawsuit. They are without merit.”
Rita Bettis, legal director for the American Civil Liberties Union of Iowa, said the injunction would be appropriate, as the images were not obscene.
“It is clearly a violation of the First Amendment for a prosecutor to credibly threaten to bring criminal charges for protected speech and expression,” Bettis told the Des Moines Register. “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.” She added that it “defies common sense” to punish a girl with a sexual exploitation of a minor charge when she is both the offender and victim.
It’s a point that Lenore Skenazy of Free Range Kids finds “nutty,” according to her blog post about the situation.
“Not only do I wish them all the luck in the world,” Skenazy wrote about the parents and their lawsuit, “I really wish we would stop treating consensual sexting — and even consensual sex — among teens as if it is automatically sexual exploitation of a minor, a crime. We seem to believe that no minor would ever have any sexual interest whatsoever, unless some pervert was involved. And now we’ve gotten to the very weird, snake-eating-its-own-tail point where the pervert doing the exploiting of the teen is the teen herself.”
Robby Soave, writing for Reason.com, shared similar thoughts on the matter. “This deal might make sense for kids who transmitted sexually suggestive pictures — although in a sane world, none would face criminal charges for mistakes that should be handled by parents and school officials,” he wrote. “But [Nancy Doe’s family] manifestly — and admirably, in my opinion — refuse to concede that their daughter violated the law. If any actual sexual exploitation took place, Doe is the victim of it, not the perpetrator. Her (not at all pornographic) pictures were shared without her consent. I don’t think the boys who betrayed her trust should be charged with a crime, either — they should be harshly disciplined by the school and grounded until the end of time by their parents — but if anyone committed a wrong, it was them.”