The Third Circuit's Sexting Skeptics

More coverage and an update from the Legal Intelligencier on Friday's first ever federal appeals court hearing on sexing as child pornography:

As the nation's first case involving criminal prosecutions of teenagers for "sexting" made its way to a federal appeals court in Philadelphia, all three judges seemed skeptical of the prosecutor's claim that child pornography laws are violated when a teen transmits a nude image of herself.



The three 3rd U.S. Circuit Court of Appeals judges also appeared poised to declare that former Wyoming County District Attorney George Skumanick Jr. violated the First Amendment rights of three girls with his threat of a criminal prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.

More on this case at the First Amendment Center and Wilkes-Barre Times Leader.

Sexting Goes to Court - Miller v. Skumanick

This just in from the Legal Intelligencier:

A federal appeals court on Friday takes up the growing practice of "sexting" — in which teenagers transmit nude and semi-nude photos of themselves and others by phone — as the judges tackle the vexing question of whether such images can be deemed child pornography.



The appeal in Miller v. Skumanick stems from a civil rights suit brought by three Wyoming County girls against then-District Attorney George Skumanick Jr. alleging that he violated their First Amendment rights with his threat of a child pornography prosecution if they refused to take a class he had designed to educate youths about the dangers of sexting.



The case is the first in the country to challenge the constitutionality of bringing child pornography charges in the context of sexting.

I covered this case extensively last spring at Sexting Students Strike Back where you can find the legal complaint, several comments, and links to coverage in the New York Times and Pittsburgh Post-Gazette.

Masha Allen's Celebrated Adoption - what went wrong?

Last month, Cambria County, Pennsylvania terminated the parental rights of one of the most celebrated adoptive parents of the last decade, Faith Allen. Russian orphan Masha Allen, who was a victim of sex trafficking when she was five years old, first came to public attention through a story in the Pittsburg Post-Gazette and later appeared on ABC Primetime, Nancy Grace and Oprah. Masha's story was also featured in the LATimes, Washington Times, and WESH news in Orlando. In 2006, Senator John Kerry passed a major piece of federal legislation in her name, Masha’s Law. Last month Masha was orphaned again when Faith’s parental rights were terminated. Masha Allen’s second adoption and third family in 17 years - what went wrong?



Oprah

“After all the terrible things Masha has endured, she finally has the mother she's always dreamed of having. Though her wounds are far from healed, life might be looking up for this young survivor.”



Nancy Grace

“I want to go to a special lady with us tonight. It`s Masha`s new mom, her adoptive mother, who is herself a crime victim. Faith is with us. You had to go through H-E-double-L to adopt this child. And I know that you`re doing this for Masha. She`s one of my new heroes tonight.”



Senator Johnny Isakson

“After a lifetime of unimaginable hardships, Masha now has a safe home filled with compassion and love thanks to her Angel in Adoption, Faith Allen.”



Congressman Phil Gingrey

“Faith Allen is a shining example of the selfless love adoptive parents give their children. Faith is more than just Masha’s adoptive mother; she is her pillar of support, providing encouragement as Masha bravely shares her story. Everyone who spends time with Faith and Masha feels the warmth and kindness that make Faith an Angel in Adoption.”



United States Attorney Mary Beth Buchanan

“Masha has been adopted by a very loving family who has changed her name and moved her to another part of the country, where she can make a new start and have a very, very wonderful life ahead of her.”



Maggie Farley - Los Angeles Times

“Masha was placed in the care of Faith, a gutsy 28-year-old who legally adopted her a year ago.”



Barbara White Stack - Pittsburgh Post-Gazette

Faith would go on to follow in Judge Allen's footsteps, caring for foster children.



One of them was an 11-year-old whom she affectionately calls Mea, a child like Faith who suffered horrible abuse and night terrors. Just as Judge Allen awoke Faith from the overwhelming nightmares, held her and read to her religious passages, Faith in turn comforted Mea.



They believe divine intervention brought them together to give Judge Allen, the mother of three boys, the daughter she never had and to give Faith and Mea the help they needed. But when the judge saw Faith with her first foster children, she knew it would be all right. ‘She has a deep capacity to love," the judge says, "If anything, my biggest concern now is that she wants to help everybody.’



Just as when Allen agreed to take Faith in, Faith had no idea at that point how terribly Mea had been hurt. Faith believes God placed Mea with her because she could understand her pain and her needs.



It is so awesome for her to be matched with a little girl of similar background who she is able to parent and minister to. I think it was by divine orchestration that it happened that way," Allen says. "And Mea reminds me so much of Faith. She has the sweetest, gentlest spirit."



Faith will never be able to bear her own children because of the abuse she suffered. But she will be a mother.



This afternoon, Faith Elizabeth Allen will adopt Mea. And officiating at the ceremony will be Judge Cheryl Allen.



Judge Cheryl Allen

“And I began to think about the fact that many people would say that this adoption is something that is just occurring by happenstance, but I don't believe that to be the case, and this is not a typical every day, ordinary adoption, so it's not -- so, I'm not going to say typical every day, ordinary things, but I've known Faith for approximately three years, and I know that Faith has been through a lot, and the type of childhood that she had, most of us would have never survived, but Faith is a fighter, and she is a survivor, and I can say that for all the trials and all the tribulations and all the abuse and all the difficulties you have been through, Faith, you know, what the enemy meant for bad, you managed to, through your faith, use it for good, and that is why you are here, or we are here today, because everything that you have been through, as difficult as it was, it has served to prepare you for just such a time as this.”



“Many people who have experienced what you've experienced, and who have the type of history that you have, have become bitter. Many of them, unfortunately, having been victims of abuse, have gone on to become perpetrators of abuse . . . you have been able to turn your trials and tribulations into a testimony, and it is because of your openness and your willingness to share your story that you will serve as a blessing to many people.”



“I know you have been a blessing in my life. You have been a blessing in Masha's life, and will continue to do so, and I believe that there will be many people blessed by your testimony and your experience, and I also believe that only a wise and all-knowing God could have taken a young girl from Georgia and connected her with a young girl from halfway around the world and brought the two of you together, and I know that -- I don't know everything that God has in store for you, but it must be something pretty awesome, because so many things have tried to come against this day coming to pass, as we know, but we are all here for you.”



United States District Judge Terrence McVerry

“I'm so happy, Masha, for you and I hope and pray for you to have a happy life with Faith, and I'm sure that that will come to pass. Anything we can do to help you, I will be more than happy to. Congratulations.”



Masha's First Lawyer: Linell Lee - Kids Voice

“I would like to say that Masha is an incredible little girl, and she's been very strong, and she's a survivor too, and I only see a bright future for her with Faith. Kid's Voice is happy to see this day!”



Pastor Winnie Pollard

“Faith is a blessing. Her strength inspires anyone who knows. There is, without any question, that the two of them are going to be a story worth watching to see how their lives are going to effect so many others. They are a sign of hope in the City for everyone that has struggled liken unto Faith and every child that is in need of help liken unto Masha.”



Masha's Third Lawyer: Attorney Diane Sternlieb

“I applaud Faith's courage. I have spent many, many months with Faith and Masha and have witnessed a bond of love between these two. Masha is lucky to have Faith in her life!”



Masha's Current Lawyer: David S. Bills writing about the withdrawl of Masha's Fifth Lawyer, Robert N. Hunn

There is no conflict of interest and Hunn's request to withdraw is not based on any conflict of interest. What he said was irreconcilable differences with Bills and Faith, both of whom you should correctly assume have Masha's interest at the forefont. There is no basis for you assume anything to the contrary.


Faith received a major award as an Angel in Adoption™ for her outstanding contributions toward the welfare of children in the United States foster care system and orphans around the globe. U.S. Senator Isakson proclaimed: “Faith Allen, who adopted her daughter, Masha, last year, is a truly amazing woman who embodies the spirit of the Angels in Adoptions program. Masha now has a safe home filled with compassion and love thanks to Faith Allen.” Representative Gingrey added: “Faith is her pillar of support, providing encouragement as Masha bravely shares her story. Everyone who spends time with Faith and Masha feels the warmth and kindness that make Faith an Angel in Adoption.



Torsten Ove - Pittsburg Post-Gazette

In December, Faith decided to move from Pittsburgh to get a fresh start.



These days, Mea has as normal a life as anyone could expect, considering how it began. She relies on her faith, often quoting a passage from Psalm 61: "Lead me to the towering rock of safety, for you are my safe refuge, a fortress, where my enemies can't reach me."



Her family is her other rock.



All it took was love from someone who cared, Faith Allen.

Restitution for Child Pornography Victims - what the government must do

Thanks to Professor Paul Cassell for this post on The Volokh Conspiracy involving one of my cases:

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case. In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases. Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution. Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution. If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

Also check out the Star Tribune which covered this issue in a story today.


Here is the full text of the judge's decision.


Minnesota Public Radio also covered this issue here.

Masha Allen - staggering malefaction at every level

"A vast conspiracy of silence" allowed abuses to go on for years in "the most extraordinary abuse of power without regard for . . . the kids." This recent editorial in the Philadelphia Inquirer referring to the judicial corruption scandal in Luzerne County could also apply to the case involving Masha Allen, another Pennsylvania judicial casualty. Unlike the situation in Luzerne County, however, countless individuals from Pittsburgh to Georgia knew about Masha's plight and failed to respond over and over again.


This lack of imagination was more than just the "human error and system lapses" which allow terrorists to continue to board airplanes, but willful ignorance of information and the basic duty of care to take quick and thorough action to protect the well being and best interest of the most notorious child sex trafficking victim in the world.


Here for the first time is a partial overview of the individuals and institutions who failed to act to protect Masha Allen.

1. According to award-winning journalist and Poynter Institute Ethics Fellow Barbara White Stack, "everyone in Pittsburgh knew Faith was mentally ill" when she adopted Masha Allen. Despite these concerns, White Stack wrote the infamous "press release" extolling, in near-biblical terms, Faith's miraculous adoption of Masha in 2004.
   
   


2. When Judge Cheryl Allen sent her name-sake Faith Allen to the Allegheny County Court employment office to get a job sometime in 2003, Court Administrator Cynthia K. Stoltz found her "obviously mentally ill" and refused to hire her. Faith was apparently not crazy enough to become a foster parent with Families United Network (FUN) where she eventually became a foster parent.
   
   


3. According to Faith's social worker at FUN, Nicole Iole, there were allegations of abuse in Lynn's foster home (one of Faith's prior names is Lynn Ginn) and several children were removed before Masha was even placed there. Lynn was dropped as a foster parent before Masha was even rescued from pedophile Matthew Mancuso. The one person who knew the most was a FUN supervisor, Serena Holt, and even then most of what they knew about Lynn was "untrue." "We never got a straight answer. Lynn always changed her name - her name always came up different. When Masha was placed in Lynn's home she was under suspension for abuse of another child and should not have been on the placement list at all. Masha was supposed to be with Lynn on a temporary basis. Suddenly it was all over the news. Lynn Ginn enjoyed this, the media publicity. She got in good with CYF and the people in charge and they CYF thought it was a good home. They pushed the adoption, pushed it as a good home and wanted it to happen. They agreed and made it happen fast."
   
   
   “Lynn said Masha never wanted to have any contact with that family Ann Mancuso. Lynn often reported what Masha said and Masha silently agreed. She would get that look on her face. Even if you pulled her aside she was almost rehearsed what Lynn told her. It was like she was repeating Lynn’s words."
   
   
   "Lynn brought Judge Allen up frequently. Talked about dinner and going over to her house. Lynn said Judge Allen would speed things up and do what she wanted to make the adoption happen. That she was going to change her name to Allen and everything."
   
   


4. FUN Supervisor Serena Holt thought Lynn was “a lawsuit waiting to happen” and wanted her and Masha’s case out of the agency ASAP.
   
   


5. According to Judge Allen, speaking at Masha's adoption, "I began to think about the fact that many people would say that this adoption is something that is just occurring by happenstance, but I don't believe that to be the case, and this is not a typical every day, ordinary adoption, so it's not -- so, I'm not going to say typical every day, ordinary things , , , Faith, many people who have experienced what you've experienced, and who have the type of history that you have, have become bitter. Many of them, unfortunately, having been victims of abuse, have gone on to become perpetrators of abuse . . . you have been able to turn your trials and tribulations into a testimony, and it is because of your openness and your willingness to share your story that you will serve as a blessing to many people."
   
   
   "I know you have been a blessing in my life. You have been a blessing in Masha's life, and will continue to do so, and I believe that there will be many people blessed by your testimony and your experience, and I also believe that only a wise and all-knowing God could have taken a young girl from Georgia and connected her with a young girl from halfway around the world and brought the two of you together, and I know that -- I don't know everything that God has in store for you, but it must be something pretty awesome, because so many things have tried to come against this day coming to pass, as we know, but we are all here for you."
   
   


6. Throughout her brief stay in foster care, FUN reportedly had "very little contact" with Masha's guardian ad litem Linnell Lee of Kids Voice. Kids Voice founder and executive director Scott Hollander wrote in 2007 that his office had "strong disagreement with Faith Allen's decision to publicize Masha's sexual abuse in the media, which was something that we have always believed was contrary to Masha's best interests and well-being. I and others who had been involved with Masha and Faith -- were concerned that Faith's own issues related to her sexual abuse impacted the decisions she made for Masha, especially regarding her decisions to publicize the circumstances and details of Masha's abuse, a decision with which so many of us disagreed. . . . Faith's publicity efforts began well before Mr. Marsh ever was involved in the case."
   
   


7. On September 27, 2006, Faith terminated our firm's representation because we were demanding a legal guardian to protect Masha's estate. We immediately telephoned the county sheriff who was called to investigate Masha's allegations of abuse, Schicketha "Skeet" Roy. Sheriff Roy is the person who forced Masha to leave a neighbor's home where she had sought refuge and return to Faith. See Douglas County Sheriff's Office Complaint Report. She was also a struggling real estate investor facing foreclosure. A few weeks after this seemingly chance encounter, Faith and Masha would move in with Sheriff Roy with Masha's adoption subsidy check paying Sheriff Roy's mortgage.
   
   


8. In the early morning of September 28, 2006, I spoke with Sheriff Roy's supervisor, Sargent Ken Harper, to express my concern about Masha's mental condition. He reluctantly agreed to send another deputy out to investigate. He stated that if they had any concern, Masha would be evaluated and then "sent to a state hospital on the other side of the state" for a 72 hour evaluation.
   
   


9. Masha was not sent to a state hospital, but to an expensive private hospital called Peachford in suburban Atlanta which recently treated Whitney Houston's child. I immediately attempted to contact Masha's doctor at Peachford, Mohammad Ahmad, M.D., who refused to return my calls. I eventually sent him this letter in my attempt to inform him of my concerns for Masha's health and well being. He never responded.
   
   


10. Faith's new lawyer, equine law specialist and former nurse Diane Sternlieb (who also claimed to represent Masha) consulted with another lawyer, Gary Bunch, who is best known for his involvement with a lawsuit against the notorious Children of the Underground organization which was a loosely linked international network that hides runaway non-custodial parents and their children. During the next several years we were repeatedly informed that Faith was telling people that she and Masha were hiding from "Masha's father" who was trying to kidnap her.
    
    


11. On Friday, September 30, 2006, we contacted Masha's Congressional office as a courtesy to advise them about her situation and our concerns for her health and safety. Faith had been declared an Angel in Adoption by Congress just a week earlier. Shockingly, with her daughter hospitalized in Peachford, Faith had found the time to call this same office which not only refused to listen to us, but declared this a "parental rights issue" and related that Masha was a "bad kid" who was "causing trouble" for her "loyal and dedicated" award-winning foster-adopt mom Faith Allen.
    
    


12. Unbeknown to anyone, during the fall of 2006 Masha was being sought by the Cobb & Douglas Public Health Department for treatment due to a positive TB test. After several home visits, during which medication was refused (and Faith reported that Masha was being home schooled), the Health Department lost track of Masha when she moved to the neighboring county and the home of Sheriff Roy. They apparently never thought to call the state Division of Child and Family Services who was also looking for Masha.
    
    


13. On October 23, 2009, I sent this packet of information to the Georgia state Division of Child and Family Services Field Program Specialist, Diane Aiken, assigned to investigate Masha's case. Through the intervention of noted Georgia attorney B.J. Bernstein, the Georgia Attorney General's office was contacted and a high-ranking attorney was assigned to lead the investigation. In an unusual move, the case was assigned to the state and not the county child welfare office. Unfortuantely, as she would late tell me, Ms. Aiken had no experience with mentally ill children or parents and did not even know what the word "DSM IV" meant. She was also unaware that Faith and Masha had moved from Douglas to Carroll county and was unwilling or unable to fully investigate the case which was eventually closed.
    
    


14. On January 19, 2007, I sent this explosive letter to DeAlvah Hill Sims, Esq. director of the Georgia Office of the Child Advocate. Despite assurances to "open an investigation immediately" and countless follow up emails from our office, the child advocate never took any action in Masha's case.
    
    


15. Finally, on February 2, 2007, facing a six month statutory deadline, I filed this notice of claim to protect Masha's right to pursue a future civil lawsuit against Allegheny County.
    
    


16. After we received information that Masha was in Cambria County, Pennsylvania, we took numerous steps to inform officials there that Masha was at risk of further neglect and abuse and that she had important civil legal rights that needed to be protected. When I identified bankruptcy lawyer Timothy Sloan as Masha's possible guardian ad litem, I sent him this letter. When he failed to respond, I sent him this letter. Finally, on December 17, 2007, I sent this letter to Masha with copies to her presumed guardian ad litem Timothy J. Sloan,
    family court judge Norman Krumenacker, and Cambria County child welfare administrator Betzi White. The next day, a colleague who was assisting me with the case, informed me of the following:
    
    
    "I received a call today from Tim Ayers who said that he had spoken with the people at Children & Youth Services, and he indicated that you were very much persona non grata with that agency, that Masha and her mother were aware of her rights, and that they had an attorney. They told Tim that there was no need for him to bring the matter to the attention of the Orphans' Court Judge. Tim is one of the solicitors for the Agency, knows the people well, and therefore is inclined to believe them. He is therefore not in a position to do anything further and will not be meeting with the Judge."
    
    
    No action was taken to secure Masha's civil rights for almost a year. During that time the agency most responsible for Masha's placement with Matthew Mancuso, Reaching Out Thru International Adoption (ROTIA), went out of business.
    
    
    

This is just a brief list of the numerous efforts we took to secure Masha's health and safety and civil legal rights. Despite hundreds of letters, faxes, phone calls and emails, no one ever responded, requested Masha's file, or sought any further information about the very serious issues we uncovered. It took over three years--the entire remainder of Masha's childhood--for the individuals responsible for Masha's well-being to finally understand that what we were saying was true; Cambria County itself terminated Faith's parental rights last month. For Masha it's just another six years of her short life lost and forgotten.