Sexting: A Teen's Thoughts

As a teenaged girl, it seems like guys never get in trouble for anything when it comes to sexual behavior. This is especially true in the recent sexting case that was heard in the U.S. Court of Appeals for the 3rd Circuit. Since we are all supposed to be equal, why are girls the only one’s who get in trouble for sexting? Adults say that sexting is wrong, but in this situation, girls are the ones being charged with a crime and forced to deal with the consequences. If a guy sent around a nude picture of himself, most people would write it off with “boys will be boys”. But if a girl does it, she could be arrested! This makes me wonder: if a guy sends me a nude picture of himself, am I wrong for having that picture in there, even though he is the one who took it? As a young woman I feel this is totally unfair. Guys should be held just as responsible as girls in these situations.

As if the unequal treatment of guys and girls isn’t enough, I also feel this is an invasion of privacy. Cell phones are supposed to be private, so what they are used for should be the owner’s business and no one else’s. What is in my phone is personal and I feel I should be able to have anything I would like to have in there. Although I am not a participant in sexting, I feel it is not as harmful as some adults may think. Everybody should be able to do whatever they want with their own body. My body belongs to me and no one else, so I should be the only one with control over it.

Demia in Philadelphia

With the Stroke of a Pen?

I've been wondering something for a while now. Over and over you'll hear from people who are frustrated by the Obama Administration's lack of progress on gay rights issues that "he could end Don't Ask Don't Tell with the stroke of a pen." I wasn't really sure if that was true. Don't Ask Don't Tell was the result of a law passed by Congress, so could the president overturn that with an Executive Order?

Today I got curious enough to go in search of the answer and - working under the assumption that I am not the only person in the world with this question - I will now share the answer I found.

It is (drum roll, please)...sort of.

According to a report issued by the Center for American Progress

Careful examination of the laws outlining the president's powers as commander in chief show that the executive branch has the authority to suspend homosexual conduct discharges without legislative action. Yet because Congress originally passed the ban on openly gay men and lesbians serving in the military, such a suspension will eventually have to be followed up with legislative action reversing the policy.

Congress, in the Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation—10 U.S.C. § 12305—grants the president authority to suspend the separation of military members during any period of national emergency in which members of a reserve component are serving involuntarily on active duty.

This provision is commonly referred to as "stop loss" authority. This policy has affected an estimated 120,000 service members since 2001, and more than 13,000 service members are still unable to leave the military because Secretary Gates has stated that the Department of Defense intends to keep the policy for another two years.

President Obama [could] issue an order prohibiting the Secretary of Defense—and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy—from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order [could] further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces. This would include banning further dismissals on the basis of DADT.

Click here to see the entire report.

So basically, the president couldn't really take the policy away, but he could stop it from being enforced, as long as we continue to be at war and the military continues to institute stop loss measures. After that, the fix is going to have to be legislative.

I, for one, am happy to finally have that question cleared up.

Becca in Harrisburg

**If you would like to know more about Don't Ask Don't Tell - how it came to be, what the problems with it are, and what other countries' experiences have been - I recommend an excellent book by Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.

Hypocrisy Abounds on the Anniversary of Legal Abortion

Today we celebrate the 37th anniversary of Roe v Wade, the Supreme Court decision that legalized abortion. In the U.S. abortion rates continue to decline, but in countries where abortion is illegal, the number of abortions is really, really high. Double, triple, even quadruple that of countries where it’s legal.

Why is that? Because enlightened and developed societies recognize that abortion is part of the continuum of care for women.

It begins with access to health care for every member of society from birth to death. Preventing pregnancy is viewed as a public health concern like preventing tooth decay. Always brush your teeth. Always use a condom.

How is the United States doing overall on women’s health? Not as good as we should be. Overall, few women here die during pregnancy or childbirth -- we rank 20th out of 135 countries. Good not great.

But, among African American women, maternal mortality rates are 3½ times greater. Health care for a black woman living in the U.S. more resembles Uzbekistan or Iran than the United States.

Among young people in the U.S. rates of unintended pregnancy, HIV infection, and STD’s are rising. In the Latino and African American communities, they are skyrocketing.

What’s wrong?

Under Bill Clinton, a group of conservative lawmakers started a $50 million dollar program promoting “abstinence-only until marriage.”

During the Bush Administration, the program became the darling of the far, far right and it experienced explosive growth -- – it grew to over $250 million dollars every year.

Even though abstinence-only until marriage programs have been:

• proven ineffective
• shown to increase unsafe sex practices
• discriminate against LGBT youth
• are insensitive to victims of sexual assault & abuse
• and, withhold vital information about safe sex practice

Money was handed out from the federal government to state governments, local school districts, private non-profits, and anti-abortion crisis pregnancy centers -- anyone willing to carry their message: that premarital sex, at any age is harmful physically and harmful emotionally.

So, that definitely leaves out gay sex, at any age, or straight sex unless you’re married. And since studies show that over 90% of Americans who do marry will have sex beforehand – what kind of message are we giving youth? And why are we allowing our government to do this?

We know that a whole host of abstinence promoters from George Bush to Sarah Palin to Dick Cheney have daughters who have not followed the message preached by their parents.

Does anyone believe Jenna Bush was a virgin on her wedding night?

What about Bristol Palin -- now a spokesperson for abstinence? Her message is something like: “It didn’t work for me, but you should try it.”

And a personal favorite – Mary Cheney, daughter of Dick Cheney, who gave birth to a daughter with her lesbian partner. Were they abstinent until marriage? Oops, they can’t get married – they’re gay. Her father was part of an administration that not only demonized gay sex, it demonized gay marriage.

I don’t know about you, but hypocrisy is not something I value in our political leaders. But this sort of hypocrisy runs wild in our political discourse. And who does it harm?

The one who thought you couldn’t get pregnant the first time.
The one who thought that pulling out was safe.
The one with HIV.
The one with Chlamydia.
The one who didn’t have enough money to refill her pills.
The one whose boyfriend refused to use a condom.

During the presidential campaign, Barack Obama promised to base policy decisions on science and public health. And in his first budget, just submitted to Congress, we have cause for optimism.

We may, just may, have eliminated all funds for abstinence-only-until marriage and in its place are plans for sex education programs. But just because there are funds available doesn’t mean that school districts will change.

We all know that many young people get their sex education or mis-education from television and their peers.

Don’t get me wrong -- some if it useful. On season 2 of Weeds, Uncle Andy taught me more about banana peels and masturbation than I ever knew.

Seriously, if we want to reduce unintended pregnancies, if we want to reduce STD’s and HIV, if we want to be inclusive of LGBT students, we need to take action.

As voters, as citizens, as people who care, you have that right. The right to make your voice heard. For your opinion to count. To try to make this a better world for yourself and for others.

Please contact your Pennsylvania state representative and let them know you want comprehensive reality-based sex education in every public school. Tell them you support HB 1162 and 1163. To find your state representative click here. If you would like more information about these bills, check out PARSE (Pennsylvanians for Responsible Sex Education). I promise you it won’t be hard. They absolutely will be nice to you on the phone.

As we mark the 37th anniversary of Roe v. Wade, we can look around the world or look around our communities to see that reproductive rights and is hopelessly tied up in the politics of the day. But for a woman experiencing an unintended pregnancy, politics is the last thing on her mind. It is time to step back and reexamine the issues broadly. It is time to refocus the conversation on fairness and opportunity so that we all can make meaningful decisions about whether and when to bear children, how we conduct our sex lives, and to hold our government accountable for the information it provides. Our democracy depends on it.

- Carol Petraitis
Carol is the Director of the Clara Bell Duvall Reproductive Freedom Project at the ACLU of Pennsylvania.

Sexting, and What It Means to be a Girl

(Cross-posted with the ACLU's Blog of Rights)

On January 15, the U.S. Court of Appeals for the 3rd Circuit heard arguments in Miller, et al. v. Skumanick, a child pornography case that, oddly, involves no child pornography. The case goes back to 2006, when two girls aged 12 were photographed by another friend on her digital camera. The two girls were depicted from the waist up, wearing bras. In a separate situation, our third client was photographed as she emerged from the shower, with a towel wrapped around her waist and the upper body exposed. Neither of the photos depicted genitalia or any sexual activity or context. In 2008 the girls' school district learned that these and other photos were circulating, confiscated several students' cell phones, and turned the photos in question over to the Wyoming County district attorney, George Skumanick, Jr.

Skumanick sent a letter to the girls and their parents, offering an ultimatum. They could attend a five-week re-education program of his own design, which included topics like "what it means to be a girl in today's society" and "non-traditional societal and job roles." They would also be placed on probation, subjected to random drug testing, and required to write essays explaining how their actions were wrong. If the girls refused the program, the letter explained, the girls would be charged with felony child pornography, a charge that carries a possible 10-year prison sentence.

Nineteen families received these letters. Sixteen consented to re-education. Three decided their girls would benefit more from a lesson in constitutional law than from Skumanick's views on "what it means to be a girl in today's society,” and called the ACLU of Pennsylvania. In March 2009, a federal judge granted a temporary restraining order preventing Mr. Skumanick and the Wyoming County, Pa., district attorney's office from going ahead with any prosecution. Now it falls to the Court of Appeals to decide whether the DA's office (Skumanick lost his bid for re-election in November) can proceed with prosecution.

This case has branded as the "Sexting Case," and headlines ask questions like "Sexting: Child porn or child's play?" But this case has nothing to do with sex, and nothing to do with pornography. This is a case of a government official using the law to force his personal morals on others. Last February, Skumanick told a group of students and parents that he had the authority to prosecute a girl for being photographed in a bikini on a beach, because the photo was "provocative." In their brief to the 3rd Circuit, the DA's office asserts their opinion that no person could exchange such photographs for any other reason except sexual gratification. Their attorney reasserted this right before the court, stating that a minor's transmission of any photograph of herself containing any nudity is never protected under the First Amendment.

Even if the photographs in question could be construed as pornographic, Skumanick lacked any evidence that the girls had transmitted the photos. His only basis for probable cause, in the words of their attorney, was "the presence of [those] photographs on the cell phones of [their] classmates." It was this lack of probable cause that led to the initial restraining order.

Interestingly, none of the classmates who distributed the photos received letters from Skumanick. Only the girls who appeared in the photos were threatened with child porn charges. If the DA did in fact regard these photos as pornographic, why not file distribution charges against the boys? A clue may be found in their argument before the 3rd Circuit. In narrating the case, their attorney explained how, after the girls were photographed, "high school boys did as high school boys will do, and traded the photos among themselves."

Ultimately, that's what this case comes down to: one man's view on how a young woman should conduct herself. The boys who traded the photos bear no responsibility and require no re-education. Instead the girls are threatened with felony charges and life-long registration as sex offenders. To apply such a penalty, designed to protect minors against exploitation, is a grotesque misapplication - and that's once again assuming that the photographs in question could possibly be construed as pornographic. In reality, there was no way such charges would ever stick, and the DA's office had to know this. The child porn charges were merely a threat, to force the parents to subject their children to Skumanick’s moral view of the world, where any and all child nudity is illegal and bras and bikinis are pornographic.

Instead these parents asserted their constitutional right to dictate the upbringing of their children; their right to say "we don't think this was wrong, and we're not forcing our children to put that in writing, and we're not forcing them to attend your re-education session," without fear of retribution from the DA's office. It is certainly important, in this era of Facebook and Twitter and text messaging, that children learn the consequences of sharing digital photographs of themselves, but as ACLU of Pennsylvania legal director Witold Walczak puts it, "prosecutors should not be using heavy artillery like child-pornography charges to teach that lesson."

The DA’s office argues that the federal court had no place issuing a restraining order, and that the proper procedure would have been to allow the prosecution to go forward and for the girls to mount a constitutional defense against the charges – but the prosecution itself was the threat. The agony of a felony prosecution, of hiring attorneys and mounting a defense, of the media attention surrounding the prosecution of a 16-year-old girl as a child pornographer were, in Walczak’s words, “the Sword of Damacles,” the threat of retribution if these parents refused to turn their children over to Skumanick.

The central question of this case was perhaps best framed by Judge Thomas L. Ambro during 3rd Circuit arguments: "Should we allow the state to force children, by threat of prosecution, to attend a session espousing the views of one particular government official on what it means to be a girl?"

Chris in Philly

Pass These Bills: A High School Student's View

At a hearing in Harrisburg about two sex education bills, the testimony by witnesses was revealing about the state of education - or miseducation - about sex in our schools. One expert stated the obvious: “Many students are misinformed about sex.” One of the reasons given is that many teachers do not teach about sex because they are uncomfortable talking about it, even though sex is natural and it is nothing to be ashamed of. Another issue is that many teachers are not sufficiently educated on the subject, so they are not qualified to teach it.

HB 1162 and HB 1163 need to be passed so that students have the opportunity to be educated on a subject that really matters in life. These bills will help students to get informed about safe sex, so when they decide to be sexually active they’ll know about more than just abstaining from sex. Abstinence is not the answer for everyone, so by having sex education classes in school, they’ll know about different ways to be safe.

Demia in Philadelphia

Demia Burrell is a junior at Mastery Charter School and will be interning with the ACLU until the end of the school year.

Gay Marriage: It's Not Just a "Liberal" Position Anymore

These two opinion pieces - the first from Robert Levy, chairman of the libertarian Cato Institute, and the second by Ted Olson, who served in the Reagan and George H.W. Bush administrations - argue in favor of gay marriage.

http://www.cato.org/pub_display.php?pub_id=11112
http://www.newsweek.com/id/229957/page/1

"That's So Gay": Anti-Bullying Legislation and LGBT Teens

As we all recover from the holidays and drag ourselves kicking and screaming back into the swing of things, LGBT advocates in Harrisburg are gearing up to work on several pieces of legislation either currently before the legislature or forecasted to be introduced in the near future. Today's Philadelphia Gay News gives a great summary of some of the high points of these Bills to Watch, which include HB 300 - the antidiscrimination bill we have been blogging about over the course of 2009 - and an anticipated anti-bullying bill.

[N]ew to this year’s legislative docket will be a bill to strengthen statewide anti-bullying protections, which is inclusive of anti-LGBT harassment.

“For the first time ever, this legislation will be introduced to beef up laws to protect against bullying because of sexual orientation or gender identity but also other characteristics, like race, ethnicity and disability,” Kaskey said. “If you look through the statistics on this — 88 percent of LGBT students were victims of verbal abuse, 19 percent were harassed because of their perceived sexual orientation and in just one month, 39 percent of LGBT students skipped class at least once because of safety issues — the need for this is obvious.”

Kaskey said he could not disclose which lawmakers would be leading this initiative, but that it would be introduced this spring.

It should come as no surprise that the use of anti-gay slurs in casual conversation, the harassment of those who are or are perceived to be gay, and the threats of being labeled gay that are used to keep especially boys from stepping outside traditional gender roles are rampant in middle and high schools. It is when we hear the real stories of the kids who have suffered the most from this homophobic culture, however, that the true cost of allowing it to continue becomes apparent. It is hard to imagine that even the staunchest opponent of LGBT rights, if he or she has a modicum of compassion, could fail to be moved by these stories.

If you are a regular reader of Speaking Freely, you will be familiar with one such story - that of C.J. Bills, one of the main characters in the documentary Out in the Silence, which the ACLU of Pennsylvania has been working to bring to communities across the state. In the film, Washington, D.C., resident Joe Wilson decides to publish the announcement of his 2004 Canadian wedding to scientist Dean Hamer in his hometown newspaper, the Oil City (PA) Derrick. The announcement causes a deluge of negative letters to the editor, but Wilson is most interested in a personal letter he receives from Kathy Springer, the mother of a gay teen (C.J.) in Oil City who has been brutally harassed to the point where she had no choice but to withdraw him from school. In response to Springer's plea for help, Wilson and Hamer pack up and go to Oil City. Their film shows Kathy's efforts to get the school board to take action to fix what was happening to her son and the subsequent lawsuit, filed by ACLU of Pennsylvania Legal Director Vic Walczak, when they refused to do so. It also includes emotional testimony by C.J. about what he endured at the hands of his peers and the faculty of the school. (If you are interested in bringing Out in the Silence to your community, please contact Joe Wilson or your local ACLU office.)

Parents who have seen Out in the Silence relate to Kathy and C.J.'s ordeal. Here, one mother describes how, in the absence of resources within her own community, she took her son to PFLAG (Parents, Families, and Friends of Lesbians and Gays) in larger communities to show him that he was not alone.

These stories and others like them illustrate not only the hell that kids are subjected to, but also the lack of resources in small towns for helping families address such situations. (One resource that is available but often not known is the Trevor Hotline, a national suicide prevention hotline for LGBT youth founded as a result of yet another harassed gay teenager who became suicidal as a result of the rejection and harassment he experienced.) At the present time, many schools do not discuss sexual orientation in their anti-bullying policies, and organizations like the ACLU or private lawyers can only take legal action in the small percentage of cases in which the bullying violates another law, such as laws against gender discrimination (if the person is being harassed because he or she does not sufficiently conform to traditional ideas about masculinity and femininity, it falls under the definition of sex discrimination - harassment specifically on the basis of one's sexual orientation does not). This leaves few options for gay teens and their parents when problems occur.

The proposed anti-bullying legislation would provide an important resource to Pennsylvania children and their parents - a written policy at each school that can be used as a basis on which to take action against the offending parties and an authority to complain to (the state Department of Education would be charged with monitoring schools' new policies). Such recourse is a vital addition to the community resources like PFLAG that Joe Wilson and Dean Hamer are trying to promote via screenings of their movie in the rural areas of Pennsylvania and other states, where these organizations are often less active and may not be widely known.

No doubt there will be some who condemn LGBT young people for their "choices" and simply do not care what happens to them - there are always a few. Hopefully, however, most of us, no matter what our other differences may be, can agree that protecting our children from severe harassment and physical assault (all too often to the point where those children consider, attempt, or actually go through with suicide) is both right and urgently necessary.

Becca in Harrisburg