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Sanity Prevails In Case Of Sexting Teen Charged With Child Pornography

 

Sending Message On Phone

Last month, I wrote about a Virginia teenager named Trey Sims who had been charged with manufacturing and possession of child pornography related to his involvement in a sexting conversation with his girlfriend in which both teens had exchanged sexually explicit photos. As may recall, originally Prince William County prosecutors had originally sought authority from a judge to have Sims injected with a drug that would give him an erection and then take photographs of his genitals for use as evidence. That request was eventually dropped due in no small part to the public outrage that the story had generated, but the charges against Sims, and the possibility that he might end up on a sex offender registry if convicted, remained. Yesterday, though, Sims was placed on probation by a Juvenile Court Judge and may have all the charges dismissed in the future:

A Manassas City teen, charged with two child pornography counts forallegedly “sexting” an explicit video to his 15-year-old girlfriend, was placed on a year’s probation Friday by a Prince William County judge, who said he would consider dismissing both counts if the teen stays trouble-free for a year.

The case attracted widespread attention because of attempts by Manassas police and Prince William prosecutors to take photos of the 17-year-old’s erect penis to compare with the video sent to his girlfriend in January. The police issued a statement Friday saying that the photos were “necessary for the prosecution to explore all legal avenues of evidence collection in order to prepare for trial.”

(…)

[P]hotos of both the male and female teens in various states of undress and a sexually explicit video were entered into evidence Friday before Prince William County Juvenile and Domestic Relations Court Judge George M. DePolo. But the face of the person in the video could not be seen, nor could any identifying marks, and Abbott said he could not say who was in the video.

The female, who had sent nude photos to the male, did not testify and was not charged.

The 17-year-old was charged with distributing child pornography and possessing child pornography, a charge reduced Friday by Richardson from manufacturing child pornography.

Richardson said that the explicit items were found on both the male and female’s cellphones and that data on the photos and video had the mapping coordinates of the male’s home. The prosecutor also noted that sexually explicit text messages between the teens were sent at the same time as the videos and photos.

Saying that teens and adults alike use each other’s phones, the teen’s attorney, Jessica Harbeson Foster, argued that the explicit photos and video could have been of anyone. She also argued that the prosecution was misguided as a policy matter. “The goal [of the law] was to protect children from injury,” she said. “The problem is, here, there is no victim, because it’s very clear from the text messaging that these two had a consensual relationship. It’s not illegal for them to have a sexual relationship. . . . This is a law to protect juveniles, not to prosecute them, not to create more harm.”

Richardson quickly left the courtroom through a rear hallway and could not be reached later. Reports of death threats against him and Abbott caused the courthouse to be on a higher-security alert Friday.

Foster said she was “reasonably happy” with the ruling, though she noted that “the persons that were depicted in the photos and videos were not identified. And it was never identified as” her client. The Washington Post generally does not name juvenile defendants.

The teen defendant said: “I don’t know how to feel about it yet. It hasn’t sunk in. . . . I feel good about the sentence, but then again, I feel bad because we didn’t need to get involved in all this. . . . They just blew it all out of proportion.”

This strikes me as the right outcome for this case. As I noted in my original post about the prosecution’s warrant request, it was simply absurd for this young man to be treated as a sex offender in this type of situation. It is, without a doubt, incredibly unwise for teenagers, or any one for that matter, to share explicit photographs of themselves online. However, the fact that something is unwise does not mean that it should be a crime, and it certainly doesn’t mean that it should be the kind of crime that would result in someone being placed on the sex offender registry before they’ve even reached adulthood. Instead, when we’re dealing with a situation like the one that presented itself in Sims’s case, it seems rather obvious that parents, schools, and other organizations are better suited to deal with the issue than the heavy hand of the criminal justice system, even at the Juvenile Court level.

Rachel Weiner at The Washington Post noted in an article that was published before Friday’s resolution of the Sims case that it had stirred up a new debate about how sexting cases between teens should be handled:

The recent efforts of Manassas police and Prince William Countyprosecutors to photograph the erect genitalia of a 17-year-old boy for evidence in a “sexting” case has revived a debate in Virginia over whether such conduct between minors should be illegal at all.

Legislation introduced in Richmond this year would have made it a misdemeanor instead of a felony for one minor to send electronically an explicit photo of him or herself to another minor or for a minor to possess up to 10 such images of another minor. But the bill failed, with defenders of the current law arguing that nightmare scenarios of law enforcement overreach were unlikely.

Opponents of the current law have pointed to the response of authorities in the Manassas case — in which a 17-year-old male sent explicit photos of himself to his teenage girlfriend — as an example of why the law should be changed.

he case “helps people to understand prosecutorial discretion is not always exercised like we think it’s going to be,” said Del. Scott A. Surovell (D-Fairfax), an attorney and sponsor of the sexting bill. “If there was a misdemeanor alternative, it would be a lot easier for schools or churches to deal with this on their own.”

Jonathan Phillips, a Fairfax Internet crimes prosecutor turned defense lawyer, has become something of a crusader against a law he struggled to enforce for four years. When he started as an assistant commonwealth’s attorney in 2008, he said, sexting wasn’t really a concept. As more kids acquired smartphones — what he calls “these immaculate weapons of their own self-destruction” — schools and parents began referring more and more cases to police.

“We were told well in advance it would fail but it would be worth the fight,” Phillips said of Suro­vell’s legislation, which he helped write.

Because of the seriousness of a child pornography charge, Phillips said, police have come into clients’ homes to seize all electronic evidence. “It’s a terrifying experience because there is no ability for law enforcement to say, ‘We’ll, we’re going to do it this way,’ ” he said. “They only have two options, yes or no, and yes is a felony.”

Many schools have a policy to expel any student accused of a felony, even if charges are never pursued, Surovell said.

Those who support changing the law admit that full decriminalization is “unrealistic” in the House criminal law subcommittee, Surovell said, where several attempts to lessen the severity of sexting charges for teens have been stymied.

“We’ve had this issue come up for years,” said Del. Robert B. Bell (R-Albemarle), who chairs the subcommittee. Despite a year-long crime commission study in 2009 and several legislative attempts, he said, “We have not come up with a way that would create a carve-out for the ‘two teenagers problem’ without creating an additional concern that you have bad actors walking through that loophole and creating dangerous and problematic child pornography.”

The American Civil Liberties Union of Virginia has opposed Surovell’s bill and similar attempts to put sexting into the state code. “We will resist as actively as we can anything that seeks to define this behavior as criminal at any level,” said executive director Claire Gastañaga. “Making it a misdemeanor just invites prosecutions and convictions.”

I tend to agree with the ACLU’s position here. This type of behavior should not be criminal, at least not in such a fashion that it would be a charge that could follow a minor around for years afterward. At the same time, Delegate Bell is correct that we need to be careful that any exception we create for teenagers sending sexy photos to each other doesn’t create an exception that allows someone who does something far more serious than what Sims did to avoid prosecution. For example, there is arguably a qualitative difference between teens like Sims and his girlfriend and a teenager who distributes explicit photos of people under 18 to a wide range of people whether its via text message or some other method such as Snapchat, and perhaps the law ought to treat those two situations differently. Unfortunately it is difficult to write an exception that would apply to situations like the Sims case while at the same time ensuring that people who fall into the second category, or who send sexually explicit photographs as a means of harassing fellow teens. That means that, for now at least, we have to rely on Judges who are willing to exercise the discretion that the law grants them to give kids like Sims a break when it is warranted. Additionally, hopefully cases like this will teach prosecutors a lesson about how to handle cases like this. The prosecutors in this case, for example, did not have to charge Sims with felonies that would have led him to being branded a sex offender for the rest of his life, and there have been countless similar cases across the country where prosecutors have chosen not to file charges. Hopefully, that is a lesson that prosecutors all across the country will learn from this incident. As for Mr. Sims, hopefully he realizes the mistake he made and will be able to get on with his life without this Sword of Damocles hanging over his head.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Ron Beasley says:

    Stigmatizing some one for the rest of their lives for doing something that teenagers do is wrong. When I was growing up we didn’t have smart phones so we showed each other our “stuff” in a bedroom or somewhere in the woods. If anything sexting is safer since there is no physical proximity. This is all about the puritanical obsession with sex that totally ignores reality.

    Like or Dislike: Thumb up 13 Thumb down 1

  2. CSK says:

    I’m quoting from Wikipedia here, which I don’t consider the world’s most reliable source, but: “The age of consent in Virginia is 18, with a close-in-age exception that allows teenagers aged 15 to 17 to engage in sexual acts but only with a partner younger than 18.”

    He was 17; she was 15. What law did he break?

    Like or Dislike: Thumb up 12 Thumb down 0

  3. Tyrell says:

    Another good example that shows why parents need to monitor their kids’ cell phone and computer use.

    Like or Dislike: Thumb up 4 Thumb down 0

  4. rudderpedals says:

    I’d like to cheer but the dumbass law means the kid now has an arrest record.

    Like or Dislike: Thumb up 2 Thumb down 0

  5. Jenos Idanian #13 says:

    @CSK: What law did he break?

    Just because it’s legal to do it doesn’t mean it’s legal to take pictures of it.

    Like or Dislike: Thumb up 5 Thumb down 6

  6. anjin-san says:

    @ Jenos

    What law did he break?

    Like or Dislike: Thumb up 4 Thumb down 1

  7. CSK says:

    @Jenos Idanian #13:

    Well, if you construe taking the photos as a type of sexual act, it is. Brainless, certainly, but not illegal.

    Like or Dislike: Thumb up 5 Thumb down 1

  8. RGardner says:

    @rudderpedals: An the arrest record will have many consequences such as not being able to travel to Canada, future employment, security clearances…..

    Meanwhile the Manassas/PW officials intentionally took pictures of Sim’s non-erect penis, for which they have not been prosecuted. Or is there some loophole in VA law that says cops may PRODUCE child pornography during an investigation?

    Like or Dislike: Thumb up 7 Thumb down 1

  9. PJ says:

    @Tyrell:

    Another good example that shows why parents need to monitor their kids’ cell phone and computer use.

    Most kids will be more technically savvy than their parents. Especially teenagers, which this is about.

    And those with tech savy parents can just get a prepaid phone…

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Jenos Idanian #13 says:

    @anjin-san: I’m already regretting this, but I’ll actually answer you politely. And for the record, I’m explaining, not arguing.

    As I said, it may be legal to do something, but it can be illegal to record it. For example, it’s legal in most jurisdictions for two 17-year-olds to have sex. (It might be everywhere, but I’m not that interested in verifying it.) However, pictures of videos of these two engaging in perfectly legal activity would be considered child pornography. And as such, it is illegal to create it, possess it, or distribute it. So if our teenage couple record themselves having sex and share it with each other, they’ve done all three — even though the act itself wasn’t illegal.

    If the teens do it themselves, willingly, it creates an interesting paradox. The teens are being charged with adult crimes against minors, which means that they are both adults and minors in this case — they are exploiting and victimizing themselves. It’s the kind of thing that the law never envisioned, and I don’t think there’s a really good solution to it.

    But that’s the law as it stands, in most jurisdictions. And cases like these simply don’t have good answers under the law, so we end up with prosecutors having to essentially make up the law as they go. And I don’t like that — prosecutors shouldn’t be essentially rewriting the law on their own. I don’t like it when Obama does it, I don’t like it when judges do it, and I don’t like it when prosecutors do it. It’s the duty of the legislature to make and change laws, not anyone else’s.

    Like or Dislike: Thumb up 5 Thumb down 0

  11. dennis says:

    @Jenos Idanian #13:

    Damn, Jenos. Your response was going so well, until you ruined it with your ODS.

    Anyway, you said:

    If the teens do it themselves, willingly, it creates an interesting paradox. The teens are being charged with adult crimes against minors, which means that they are both adults and minors in this case — they are exploiting and victimizing themselves.

    No, only the boy was charged with a crime; the girl was not charged. That double-standard riles the s*** outta me. Either charge them both for the crime that they both committed, or give it a rest.

    But seriously, I was enjoying your post ’til you flipped out at the end. Can’t help yourself, huh?

    Like or Dislike: Thumb up 9 Thumb down 0

  12. anjin-san says:

    @ Jenos

    so we end up with prosecutors having to essentially make up the law as they go.

    Hopefully, we end up with prosecutors making wise use of prosecutorial discretion, a critical component of our system of justice. The law is, or should be, our servant – not our master. Avoiding miscarriages of justice is in all of our interests, and this is a case of an egregious miscarriage of justice. Clearly, the prosecutors office exercised discretion by not charging the girl. Sadly, they failed to extend that sensible decision to the boy, and his life will be damaged by their failure.

    There is no paradox here, just idiocy from an over zealous prosecutors office and police who’s intended course of action borders on insanity. I’m not clear if you understand the role of prosecutorial discretion. A prosecutor enjoys a great deal of power – they can decide who to charge, what charges to bring, to drop charges, and so on. This is not “rewriting the law”, it is the legal system functioning as it is intended to. Prosecutorial discretion is an important check in our legal system, and I think we all agree on the importance of checks and balances.

    In this case, culpability, prior records, the need to conserve resources for more important cases, and alternatives to formal prosecution all should have been considered. Bringing the power of the state to children who were engaged in consensual activity with no evidence of malice is, in fact, a miscarriage of justice, especially when we consider that the intent of the law is to protect minors for perdition by adults.

    BTW, I do agree with Dennis, that is one of your better comments. Next time leave out the ODS.

    Like or Dislike: Thumb up 4 Thumb down 0

  13. OzarkHillbilly says:

    @RGardner: In MO, any juvenile arrested, charged, and convicted as a juvenile has their record expunged upon reaching the age of 18***. Not sure about VA but I suspect the same there.

    *** I have personal experience with this.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Jenos Idanian #13 says:

    @dennis: No, only the boy was charged with a crime; the girl was not charged. That double-standard riles the s*** outta me. Either charge them both for the crime that they both committed, or give it a rest.

    You’re absolutely right about the double standard, and I probably should have mentioned it. It’s not that different from the “campus rape epidemic,” which itself is fueled by a double standard. If a couple both get drunk and then have sex, the responsibility shifts from the drunken female and entirely on to the drunken male — even if he’s as drunk or more than she is. If men and women are supposed to be equal in rights (and I think they should be), then they should be equal in responsibilities. I was focusing on other aspects, and the double standard is its own issue, but you’re right that it’s also important.

    But as for prosecutorial discretion and my alleged ODS… sorry, not gonna accept that. I’m a big believer that we’re a nation of laws, and when the law sets up bad situations, then the law should be changed. I don’t like entrusting any individual with the power to decide what the law is, or should be. I don’t trust individuals choosing to substitute their own judgment for the clearly-written law.

    Yes, the law is wrong here. But the solution isn’t to just say that “we’ll trust prosecutors to do the right thing and not bother to enforce it in these kinds of cases.” It’s to fix the law. It was fine when it was written, but technology has developed where pretty much anyone can, at any time and with minimal expense, produce “child pornography” — especially minors. We shouldn’t decriminalize child pornography, but we need to distinguish that produced/possessed/distributed by adults from that produced/possessed/distributed by willing minors.

    I’m thinking that a law reducing the penalties for minor participants who share it with other participants, and tougher penalties for non-participating minors. My thought is that if it’s just the couple, a little more than a slap on the wrist.

    However, when it’s a case when a young couple make a sex video and share it with a bunch of friends, some of legal age and some not, it’s downright ugly. By law, those over 18 who get the video are possessing child pornography. And I’m not sure what they should be obligated to do, and what the penalties should be.

    But to go back to my original point: if the law, as written, leads to bad results, the answer should be to fix the law, not just trust those charged with enforcing the law to substitute their own judgment. Because what happens when the person who makes those choices is someone who doesn’t agree with you?

    That’s why I’m not as worried as I could be about Obama’s unilateral actions on ObamaCare, and his threats to do likewise on illegal immigration. Because whatever he does can be undone, the same way, by a future Republican president. And those who support Obama’s actions now have no leg to stand on when that president points out how many times presidents have overturned predecessors’ executive orders with a stroke of a pen.

    This is what you risk when you take shortcuts.

    Like or Dislike: Thumb up 3 Thumb down 1

  15. rudderpedals says:

    @OzarkHillbilly:

    In MO, any juvenile arrested, charged, and convicted as a juvenile has their record expunged upon reaching the age of 18***.

    Unfortunately certain background investigations (admission to the bar for ex) take into account juvenile incidents and incidents that are expunged.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. @Jenos Idanian #13:

    I just wanted to point out that Jenos is exactly right about this:

    Consensual sex between a 15 year old and a 17 year old is not against the law because there is no statute that criminalizes it.

    However, the distribution and possession of child pornography laws criminalizes all pornography involving minors, even that made by the minor him or herself and in their own possession or the possession of another minor (Va. Code §§ 18.2-374.1 and 18.2-374.1:1).

    @OzarkHillbilly:
    As I read the law (I am, admittedly, a little unfamiliar with juvenile justice laws here in Virginia since my job doesn’t usually have me involved with juveniles), felony convictions in juvenile courts are not expunged.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. anjin-san says:

    @ Timothy Watson

    Thanks for letting us know what law they broke – a useful bit of information to have in this discussion.

    @ Jenos

    the solution isn’t to just say that “we’ll trust prosecutors to do the right thing and not bother to enforce it in these kinds of cases.”

    I don’t remember anyone saying that. By all means, try to fix the law. But that is often easier said than done. In the meantime, prosecutorial discretion exists as a check in the system in part to deal with situation such as this. We pay prosecutors to use their judgement in deciding who to charge, who not to charge, and what charges to bring or not to bring. It’s a feature of the system, not a bug.

    Or are you saying that prosecutors should simply be forced to prosecute every single person who is arrested?

    Like or Dislike: Thumb up 1 Thumb down 0

  18. Jenos Idanian #13 says:

    @Timothy Watson: I just wanted to point out that Jenos is exactly right about this:

    I know how painful that must have been to type. And out of consideration as to not cause you more pain, I won’t thank you.

    Like or Dislike: Thumb up 2 Thumb down 0

  19. Jenos Idanian #13 says:

    @anjin-san: What I’m trying to say (and I’m still hashing out exactly what I’m thinking, translating it into words) is that cases that hinge on “prosecutorial discretion” should trigger an immediate push for legislative action to address the particular circumstances that pushed the prosecutor to ignore the law as written.

    In this particular case, I don’t know what would be a good remedy. Personally, I want to take the two teens into a private room and scream at them for a bit, dope-slap them repeatedly, threaten them with jail time, confiscate their cell phones and replace them with camera-less flip phones until they’re both 18, then kick them out and tell them that next time they won’t get off so easily. (Pardon the expression.) But I really don’t think that could be put into a law that would pass, let alone withstand legal challenge.

    But the idea of saying “yeah, it’s technically illegal, but we’ll let the prosecutors use their own judgment” bothers the hell out of me. Because sooner or later there will be a prosecutor who judges wrongly (at least, in my opinion), and some dumbass will end up getting stuck with a felony conviction for just being a dumbass.

    Like this teenager almost was.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. Joe G. says:

    I’m sorry you think this is a “right outcome.” The only “right outcome” here would be for the prosecutor responsible for seeking (and the Judge responsible for signing) the “photograph the minor’s erection” warrant to be terminated and censured.

    Instead, the police and prosecutors have, in their public statement, effectively blamed the boy and his counsel for the State’s egregious conduct. In essence, what the press release is insinuating is “we wouldn’t have been forced to photograph the boy naked, and credibly threaten to force him to take more pictures with a medically induced erection” if he and his attorney had simply “played ball” threw himself at the state’s mercy, We probably would have agreed to the same outcome then.

    Sorry, that’s not how the criminal justice system (and certainly not the juvenile justice system) is suppose to work. A defendant’s invocation of his right NOT to deal with the police and to hold the state to its burden of proof is NOT a green light for abusive and prosecutorial overreach of this kind.

    Make no mistake, but for the defense attorneys’ involvement and her decision to go public with this story, the cops wWOULD HAVE SERVED that warrant, and further abuses would have happened. The prosecutor’s claim now that warrants are routinely obtained “just in case,” and that they are often abandonned upon further reflection is absolutely absurd, as any one with experience in the criminal justice system would know.

    It makes me ill to think abou all the cases like this that don’t have the benefit of attorney involvement and publicity. Apparently, even Judge oversight means nothing of the warrant process means nothing in Prince County.

    Finally, you should know, that prosecutorial ethics requires more than simply asking “is it legal.” See: Virginia State Bar Guideline 3.8: “Additional Responsibilities Of A Prosecutor”

    Like or Dislike: Thumb up 4 Thumb down 0

  21. RGardner says:

    @OzarkHillbilly:

    In the case of data-sharing with the Canadian Border folks, it doesn’t matter if it was expunged if after ~2005 – they keep the data. And in many states you have to formally request that juvenile records be expunged, it isn’t automatic. I know someone (27) who got a fireworks violation in WA when he was 17 who isn’t allowed into Canada (tested it 2 years ago). OMG, explosives, terrorist! And if the Canucks turn you around, the US side (CBP – Customs and Border Protection) sends you to secondary inspection so your day is doubly ruined.

    He works part of the year in Alaska (no, not summer, varies), so he can’t simply drive the Al-Can Highway because of this ban (the AK ferry doesn’t run all year, and costs twice as much as driving). He can request an indulgence from the Canadian Consulate (~$250-1000, and non-refundable if they turn you down) “Applying for rehabilitation” AKA “Rehabilitation Certificate.”

    Anyway, there are border-area lawyers that specialize in stuff like this (DUIs a decade ago being the most common offense for Canadians turning folks away).

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