In what is being called the first sexting case in the nation to reach a federal appellate court, the American Civil Liberties Union has taken on a Pennsylvania prosecutor who tried to prosecute teen girls for “sexting.”

“Sexting” is the act of transmitting sexually explicit photographs over a cellphone.

The sexting case began when revealing photos of the three girls showed up on the cell phones of other teens. Two of the photos depicted 12-year-olds in training bras, while the third showed a 16-year-old emerging from a shower with her breasts exposed above a towel.

The U.S. Court of Appeals for the Third Circuit will decide whether the district attorney overstepped his authority when he ordered these and other teens accused of involvement in sexting to attend classes addressing sexual behaviors or face prosecution for their role in creating images that he contends constitute child pornography.

The U.S. District Court ruled in favor of the girls and the ACLU, enjoining the prosecutor from charging the girls as pornographers or mandating their attendance at classes intended to deter them from such behavior.

New Jersey Child Pornography Laws

This case is being watched nationwide, as parents, prosecutors and teens are eager to see if the girls will be treated as pornographers or victims.

Here in New Jersey, the applicable law is N.J.S.A. 2C:34-3b(1). The crime is known as Promoting Obscene Material for Persons Under 18. A violator is defined as “a person who knowingly sells, distributes, rents or exhibits to a person under 18 years of age obscene material.”

“Obscene material” is defined as “any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.”

The photographs of girls in training bras do not depict nudity as it’s commonly understood, meaning that if the case involving the girls were in New Jersey, the prosecutor’s case would be a difficult one to prove.

The photo of the girl whose breasts are exposed could more readily be defined as a nude photograph nominally within the purview of the New Jersey statute. However, the real question is whether it’s reasonable to charge a girl with violating obscenity or pornography statutes when she (or a friend) took the photos.


The ACLU argued that it is absurd for the district attorney to prosecute these children as pornographers while simultaneously claiming that prosecution is necessary to protect them from pornographers. The ACLU noted that in cases involving undisputed pornographic images of children, the children are normally considered victims, not pornographers or accessories to the pornographers. As for using the threat of prosecution as a stick to get the girls to attend classes aimed at teaching them the dangers of pornography, the ACLU calls the practice a violation of the girls’ First Amendment rights.

The consequences of convictions for these girls – and other teens engaged in “sexting” – are enormous. Though it’s unlikely any court would impose prison sentences, they might be required to register as sex offenders and suffer from the stigma attached to that label as they make their way through life.

Consult With An Atlantic City Criminal Attorney

To learn more about this case and how its outcome may affect teenagers and parents, consult with an experienced criminal law attorney in your area.