Prosecutors Want To Create Child Pornography To Help Prosecute A Child Pornography Case

The law's insane over-reaction to teen "sexting" has gotten even more insane in one Virginia County.

Sending Message On Phone

Police and prosecutors in Northern Virginia are asking a judge to authorize them to take pictures of some very intimate parts of the body of a 17 year-old male Defendantas part of an investigation relating to a “sexting” incident between him and his 15 year-old girlfriend:

Manassas City teenager accused of “sexting” a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said. A Prince William County judge allowed the 17-year-old to leave the area without the warrant being served or the pictures being taken — yet.

The teen is facing two felony charges, for possession of child pornography and manufacturing child pornography, which could lead not only to incarceration until he’s 21, but inclusion on the state sex offender data base for, possibly, the rest of his life. David Culver of NBC Washington first reported the story and interviewed the teen’s guardian, his aunt, who was shocked at the lengths Prince William authorities were willing to go to make a sexting case in juvenile court.

“The prosecutor’s job is to seek justice,” said the teen’s defense lawyer, Jessica Harbeson Foster. “What is just about this? How does this advance the interest of the Commonwealth? This is a 17-year-old who goes to school every day, plays football, has never been in trouble with the law before. Now he’s saddled with two felonies and the implication that he’s a sexual predator. I don’t mind trying the case. My goal is to stop the search warrant. I don’t want him to go through that. Taking him down to the hospital so he can get an erection in front of all those cops, that’s traumatizing.”

(…)

The case was set for trial on July 1, where Foster said Assistant Commonwealth’s Attorney Claiborne Richardson told her that her client must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone. Foster asked how that would be accomplished and was told that “we just take him down to the hospital, give him a shot and then take the pictures that we need.”

The teen declined to plead guilty. Foster said the prosecutor then requested a continuance so police could get a search warrant, which was granted by substitute Juvenile Court Judge Jan Roltsch-Anoll. Two days later, both sides were back in court. Foster had filed a motion to allow her client to travel out of state to visit family. Richardson wanted the teen to comply with the search warrant before he left. Juvenile Court Judge Lisa Baird declined to order that, and allowed the teen to leave the area. But he has another court date on July 15.

The facts of the case should be fairly familiar to anyone who has read about these types of cases, which have become quite prevalent with the rise of smartphones with cameras. One day, the Defendant’s girlfriend sent him photos — the article doesn’t state whether they were of a sexual nature or not, but that is certainly implied — and he responded by sending her a video of his erect penis. The girls mother apparently saw the video on her phone and filed a Complaint, thus beginning the legal process that this Defendant finds himself in. So far at least ,the first has not been charged with anything although from the facts of the case it would certainly seem as though there would be a basis to do so. When the Defendant was arrested, he was taken to the county’s Juvenile Detention Center where, among other things, photographs were taken of his genitals. If this Defendant is convicted of the felonies that he’s charged with, he faces the potential of jail time until he reaches the age of twenty-one and being listed in the Virginia State Police’s sex offender registry for the rest of his life. In other words, in some very profound ways, his life will essentially be ruined before he even reaches the age of eighteen. To add to that, prosecutors how want to force him to undergo a medical procedure that can only be described as humiliating in order to prove their case. To be blunt about it, they obviously need to establish some connection between what is depicted in the video and the Defendant and taking additional pictures is, they think, the only way to do that.

There are, of course, two issues at play here.

The one that brings the most ire, of course, is the fact that prosecutors are seeking a Court Order to force the Defendant to submit to a medical procedure so that they can take pictures of his erect penis, presumably in the presence of not just medical personnel but also the police investigating this matter. As Carlos Flores Laboy, who is served as a Guardian ad Litem for the Defendant, notes in the linked article, there is really no functional difference between what the state wants to do here and what the statute that he is charged under defines as child pornography. While these photographs would not be illegal because they’d be authorized by Court, the logic behind banning third parties from taking sexually explicit pictures of a child would also seem to apply here. In both cases, the child, and legally this Defendant is still a child, is still going to suffer the same trauma and humiliation. At the very least, as Laboy says, the irony of creating child pornography to prosecute a child pornography is indeed quite rich. The fact that the prosecutors don’t seem to think they are doing anything improper, on the other hand, is disturbing.

More broadly, of course, this case raises the same issues that “sexting” involving teens have raised since they started becoming prevalent around five or six years ago. Teenagers who share explicit photos of themselves with others via cell phone and others means are, obviously, acting unwisely given the fact that those photos can be easily spread to people they don’t intend to share them with. As with many things that teenagers do, it is dumb and reckless and something that they ought to be discouraged from doing. Unfortunately the ubiqutousness of Internet and devices with cameras has made it very easy for them to do such things. Even if it fits the strict definition of the statutes. it makes no sense at all to start tossing out child pornography charges when a 15 year-old and 17 year-old start trading pictures like this, especially since a conviction under such laws can have consequences that will have devastating impact on a child just as they are entering adulthood. How, exactly, does that fit into any definition of “justice,” especially in a juvenile justice system that is supposed to be aimed more at rehabilitation than punishment when it comes non-violent offenders.

Hopefully, saner heads will prevail in Virginia on this one.

Update 7/10/2014: Saner heads have prevailed to some degree in that the police have dropped the demand for the photographs. The charges against the Defendant remain, however, as does the possibility that he could be branded a sex offender for the rest of his life.

FILED UNDER: Crime, Law and the Courts, Policing, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.

Comments

  1. Just Me says:

    I hope his attorney fights hard to stop this. The idea of forcing a teen to get an erection and take pictures of it to share with a jury is just wrong.

    I am not overly comfortable with the concept of labeling a 17 year old a sex offender for exchanging pictures with his girlfriend unless there is other evidence to indicate he encouraged her to send the pictures or exploited her in some other way.

  2. James Joyner says:

    Rather obviously, minors sexting with minors is not what child pornography laws were designed to protect against. If the 17-year-old is sexting 7-year-olds, that’s another story.

    Just as clearly, it makes no sense for authorities to spend their time creating child pornography honey traps. If it’s a big enough problem to warrant their attention, then there’s plenty of existing child pornography to go after.

  3. Another Mike says:

    it makes no sense at all to start tossing out child pornography charges when a 15 year-old and 17 year-old start trading pictures like this,

    Yes, you are right. The parents should be able to set these teenagers back on the straight path. Maybe the presence of the police to add a little gravitas might be appropriate.

  4. John Peabody says:

    Some states have ‘Romeo and Juilet’ laws for minors so that neither can be charged with statutory rape in the case of full consent. Naturally, there is a window, usually no more than two years difference in age. That should apply to these, as well.

  5. Ben says:

    @Another Mike: Unfortunately, when the girl’s mother found the explicit video on her daughter’s phone, she didn’t do the sensible thing and sit the two kids down or call the guy’s parents. She did utterly batshit insane thing and called the cops. She is the problem here, and everything that has happened is ultimately her fault. People need to stop calling the cops except in life-threatening situations. Cops aren’t going to deal with situations with discretion and tact. They’re going to throw people in jail and pursue charges, at a minimum. That’s what the police do. Don’t call the cops in situations where all that’s required is being a freaking adult and a parent.

  6. R.Dave says:

    Dollars to donuts the boy is black and even money the girl is not.

  7. Ken says:

    “There are, of course, two issues at play here.

    The one that brings the most ire, of course, is the fact that prosecutors are seeking a Court Order to force the Defendant to submit to a medical procedure so that they can take pictures of his erect penis”

    One issue is being put in jail for years, and then being put on the sex offender registry – severely limiting his ability to choose where to live, destroying his chances at any kind of career beyond day-laborer, pre-emptively poisoning his relationships with potential neighbors, romantic partners, and even the local police, who will forever after turn immediately to him as a suspect in all future sex related crimes in his area – FOR THE REST OF HIS LIFE.

    The other issue is an embarrassing, intrusive, possibly mildly traumatizing medical procedure that will be over in a matter of minutes and will cause no lasting physical harm. And that’s the one that “brings the most ire” in your mind?

    You’ve got some farked up priorities.

  8. beth says:

    I’m beginning to think that all cellphones should come with image recognition software that won’t allow you to text a photo of your penis. Nothing good can come of it. (Hey guys – we know you’re really proud of it but we really don’t want to see it that badly and we sure as hell don’t want a photo of it for posterity.)

    Let’s hope all the adults in this clusterf**k come to their senses before these kids lives are ruined.

  9. CSK says:

    Does the Fifth Amendment come into this at all? Aren’t they asking the kid to incriminate himself?

  10. Matt Bernius says:

    @John Peabody:

    Some states have ‘Romeo and Juilet’ laws for minors so that neither can be charged with statutory rape in the case of full consent.

    Unfortunately many don’t. And that plus the development of modern sex offender rules has led to a lot of young individuals ending up branded as sex offenders for much — if not all — of their adult lives for consensual relations that a generation ago would not have had the same ramifications.

  11. CSK says:

    @beth:

    Quite right. In the flesh is one thing, but I don’t need pix to remind me if I had a good time. It’s not the sort of thing you forget.

  12. James in Silverdale, WA says:

    Evidently vaginal probes are not enough. Have to go after the men-folk now.

    Barbarism has many faces.

  13. @CSK:

    Submitting to a physical exam is generally not held to be “testimony” within the meaning of the Fifth Amendment. It is considered “evidence” within the meaning of the Fourth. Hence, the need for a search warrant/court order.

  14. CSK says:

    @Doug Mataconis:

    Thank you.

  15. grumpy realist says:

    I think I’ll classify this one under “has everyone gone absolutely insane?”

    Heck, maybe we should simply start banning teens from having cell phones with cameras. Let ’em text as much sexytalk to each other as they want.

  16. Hans says:

    In a rare example of legislative sanity and decency, a legislator from this county, Virginia Delegate Jackson Miller (R-Prince William), once tried to limit the reach of the state’s criminal code against sexting between consensual teens of similar ages, to keep things like this from happening.

    But apparently, his colleagues didn’t listen to his common-sense proposal.

    James Madison, who served in the Virginia legislature, was so disgusted by the typical legislative product of state legislatures, that he originally wanted Congress to have a veto power over all state laws anywhere. (See political scientist Michael Greve’s Missouri Law Review article on the Constitution’s compacts clause.)

  17. Rob in CT says:

    The whole thing is insane, top to bottom, front to back.

    At what point does somebody involved with the prosecution stop and think “what the hell are we doing here?”

  18. Jenos Idanian #13 says:

    If my adolescence was typical, you’d need a court order to… let me put this delicately… get a picture in the “at ease” state. “Ten-hut” was the default.

    But yeah, this is going way, way too far. I’m hoping the prosecutors are threatening this with the intention of scaring the crap out of him and others, and not actually planning to do it.

    I’d like to see the “half plus seven” rule written into law for statutory rape cases. It’s a nice, sliding-scale rule that’s easy to understand, and makes allowances for increasing age differentials as the ages go up.

    (For those not familiar with the “half plus seven” rule, it says that to determine the maximum age differential between a couple, take the older member’s age, divide it by 2, then add 7 years. So an 18-year-old could date a 16-year-old, 20 can date 17, and so on. I dunno who came up with it, but it really works pretty well.)

  19. Grewgills says:

    @Jenos Idanian #13:
    I think that rule needs a few tweeks, as it still leaves the rather common 16 yr old dating a 14 yr old as statutory rape. I like the way it is handled here better, charges of first degree sexual assault if the younger party is younger than 14 or between 14 an 16 and the age differential is 5 years or more. I would prefer that it apply to all minors rather than just up to 16 yr olds, but ymmv.

  20. Tillman says:

    People need to stop calling the cops except in life-threatening situations. Cops aren’t going to deal with situations with discretion and tact. They’re going to throw people in jail and pursue charges, at a minimum. That’s what the police do. Don’t call the cops in situations where all that’s required is being a freaking adult and a parent.

  21. John Cole says:

    Every cop and prosecutor should be immediately fired. And then tied up in the public square so every one can photograph their genitals while news anchors offer commentary. These people are sociopaths. Whatever happened to prosecutorial discretion?

  22. anjin-san says:

    This was a problem for the parents to deal with, its a shame the cops/DAs office did not simply tell them that. Seems like fairly normal behavior for teenagers, though we were certainly low-tech in my day.

    As a society, we need to take a hard look at how and why we are creating criminals to feed the criminal justice/prison system. The system is NOT going to reform itself.

  23. Jenos Idanian #13 says:

    @anjin-san: This was a problem for the parents to deal with, its a shame the cops/DAs office did not simply tell them that. Seems like fairly normal behavior for teenagers, though we were certainly low-tech in my day.

    The problem is, it takes both sets of parents working together for this to have a chance of working. In the Kaitlyn Hunt case in Florida, the victim’s parents went to the other parents and filed civil orders to keep the 18-year-old away from their 14-year-old, and nothing worked. Eventually they filed criminal charges, and even that wasn’t enough.

  24. Rob in CT says:

    I had a close view of a sorta kinda similar situation, Jenos.

    We employ a nanny. She has two daugthers. When one of them was still 15, she had a 19-yr old boyfriend. They’d sneak out together and whatnot. They got pulled over by a cop once (not on the mom’s request, since she was asleep and unaware that her daughter was out w/the guy) who, upon finding out their ages, gave the young man some friendly advice (take her home, son, this is technically kidnapping since he mom doesn’t know she’s out of the house). The mom tried to talk her daughter into understanding that 19 & 15 is a bit much. No dice. She tried to talk to the guy’s parents. They wouldn’t help. She warned him that she didn’t want to involve the authorities, but she would if she absolutely had to.

    Meanwhile, he was starting to exhibit controlling behavior (he was attempting to dictate which table the girl sat at at lunch in school. He was 19, having already graduated. Think about that for a moment. Yeah.)

    He sneaked into her house to sleep with the daughter. She stumbles upon him at 2am in her home. After having tried everything else she could think of, nothing had worked. She, I think understandably, finally called the cops on him, and he was arrested.

    Then, once charges (stat rape, I do believe) were filed, the guy’s parents wanted to make nice. But at that point, it was too late. I don’t recall the final legal outcome, but it wasn’t good for him.

    Now I’m of the opinion that 19-15 ain’t 17-15 (and, while it’s not perfect, I basically agree with you on the half plus 7 “rule”). But I do understand a parent involving the cops after having exhausted all other options. I don’t know if that happened in VA. If it did – if there is a lot more to this story than the sexting, I might be a little more understanding, at least of the mother of the girl. Not so much the prosecutors.

  25. Hal_10000 says:

    FWIW, the DA”s office released a statement about it (http://www.washingtonpost.com/blogs/local/wp/2014/07/09/manassas-city-police-release-statement-on-teen-sexting-case/). I don’t see how this justified the draconian charges they are bringing.

    Re: Romeo and Juliet laws. Under Virginia law, if these teens were having sex, it wouldn’t be a problem. Age of consent is 18 but for 15-17 y/o’s, there is an exemption.

  26. Roger says:

    While these photographs would not be illegal because they’d be authorized by Court,

    I’m curious about this. Is there a statute in Virginia that says courts get to authorize otherwise illegal acts? If I can convince a judge to authorize me to knock over a convenience store, is that then legal?

    I can imagine a number of ways the Virginia child pornography statute could be written that would allow the police to take their pictures while technically avoiding the reach of the statue (I’m too lazy to look it up to see if any of those ways actually apply in this case), but the general notion that, “if a judge says it, that makes it legal” drives me crazy. Maybe the law does say that in Virginia, but if the law says that, then the law is a ass.

  27. JKB says:

    The world is too bloody serious these days. In 1982, a similar scheme by an authority figure to identify an errant penis was good for near 10 minutes of gut busting laughter. Apparently, the prosecutors in VA have not seen ‘Porky’s’.

    And really, couldn’t they just have a police artist do a sketch and post wanted posters?

  28. Franklin says:

    @Another Mike: Not following your logic here. Care to elaborate?

  29. anjin-san says:

    @ Jenos

    What does the Kaitlyn Hunt case have to do with this?

  30. Jenos Idanian #13 says:

    @anjin-san: Well, annie, if you’re claiming to be so stupid as to not see the parallels, I’ll spell them out for you.

    Both cases involve sexual activity that was consensual on both parts, but were illegal by the fact of one of the parties being under the age where she could legally give that consent. Both cases involve the parents of the younger party getting the police involved. And both cases had a lot of people saying that the complaining parents had grossly overreacted by involving the police in the matter.

    In the Hunt case, it quickly came out that the complaining parents had tried numerous other ways of getting the older participant to stay away from their minor child, and had been thwarted repeatedly. And the authorities took quite a few steps to discourage the older party short of arresting, which failed. And even arresting and charging her didn’t work, as Hunt repeatedly violated the terms of her bail.

    In this case, I’m suggesting that rushing to judgment and condemning the complaining parents might be a bit hasty, as the last time many of those who condemned them ended up looking very, very stupid. And some of those who didn’t look stupid ended up looking even worse.

    Is that clear enough for you, annie?

  31. anjin-san says:

    @ Jenos

    Given your obsessive repetition of the intimate details of sex between two young girls in the Kaitlyn Hunt case, I am thinking that it’s likely you are pleased to have another opportunity to comment on subject mater you obviously find titillating.

    As for your little Snoopy dance regarding the vast victory that you seem to think you claimed in the discussion of that case – have you ever noticed that you are always dancing alone? No? I guess that would require some insight.

  32. Jenos Idanian #13 says:

    @anjin-san: As for your little Snoopy dance regarding the vast victory that you seem to think you claimed in the discussion of that case – have you ever noticed that you are always dancing alone?

    Some of us are just born to be solo acts, darling. It’s not my fault so few are worthy of sharing the spotlight with my magnificence.

    Now you’re making me want to go back to that old thread and see just what you had to say about the Hunt case. I don’t recall any particulars off the top of my head, but I have a hunch you were one of the “poor Kaitlyn” suckers…

  33. anjin-san says:

    There will always be teenagers who have sex. There will always be parents who are alarmed about their kids behavior. Poor judgement and reckless behavior are pretty much the hallmark of the teenage years. The parents of the children involved will often be at odds with each other, blaming the other child/parents is so common as to be a cliche.

    Certainly there are times when the law has to get involved, but this should be avoided when possible. Thinking back to my teen years, I can’t recall a single incident of police getting involved in the romantic/sex lives of a couple at the schools I attended, and that is probably a good thing.

  34. anjin-san says:

    @ Jenos

    Now you’re making me want to go back to that old thread

    While you are there, get a calculator out and count all the times you commented about the details of a sex act between two young girls. Then go look in the mirror and ask yourself why you could not stop thinking/talking about it.

  35. Jenos Idanian #13 says:

    @anjin-san: Let’s see… you started out saying that Hunt was 17, not 18. So you were wrong there.

    Then you brought up an anecdote from your own past when you were discouraged from pursuing a 15-year-old when you were 18. Nice story, but you actually listened to her father telling you to stay away. Hunt refused such sound advice, repeatedly, even when delivered under color of law. So that was pointless.

    Then you brought up the Trayvon Martin case. And you argued about what constitutes “pedophilia,” saying that it referred only to pre-pubescents.

    Then you argued that since Hunt didn’t have any “malicious intent,” she shouldn’t be charged with statutory rape. A defense that pretty much anyone charged with that particular crime could claim.

    Then you went political, saying that it was a conservative/liberal thing.

    Then you argued that 18 is just some arbitrary number, and shouldn’t really have any kind of legal meaning.

    And you went on and on…

  36. Jenos Idanian #13 says:

    @anjin-san: While you are there, get a calculator out and count all the times you commented about the details of a sex act between two young girls. Then go look in the mirror and ask yourself why you could not stop thinking/talking about it.

    I called it pedophilia — an adult having sexual relations with a child (using legal definitions of both). You objected to that, so I described the conduct in factual descriptions that you couldn’t argue with.

    And you were more offended by my description of the acts than the acts themselves.

  37. anjin-san says:

    @ Jenos

    I guess I lost you at “take a look in the mirror”

    At any rate, if you want to dwell on the sex lives of children, you are going to have to do it without my participation. You and your rationalizations can run along now.

  38. Jenos Idanian #13 says:

    @anjin-san: I could care less about the sex lives of children. However, parents do have concerns in that area, and so does law enforcement. Hell, I’d even go so far as to say “responsibilities” when it comes to children under the age of consent being exploited by older people.

    I agree with that, and support their taking their responsibilities seriously.

    You seem to argue that as long as the adolescent says yes, it’s no big deal. I disagree, and so does the law.

  39. anjin-san says:

    @ Jenos

    I could care less about the sex lives of children.

    Your behavior on this blog suggests otherwise.

  40. Rob in CT says:

    @Hal_10000:

    I love that if they had sex, it’s ok, but sending pictures is a terrible crime.

  41. Grewgills says:

    @Jenos Idanian #13:

    I called it pedophilia — an adult having sexual relations with a child (using legal definitions of both).

    That is a rather nonsense definition. By this definition childhood sweethearts could start dating at 14 and 15, begin sexual relations at 16 and 17, and the older party would become a pedophile when he/she turned 18.
    From the wiki (which is well sourced in this instance)

    Pedophilia or paedophilia is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children, generally age 11 years or younger. As a medical diagnosis, specific criteria for the disorder extends the cut-off point for prepubescence to age 13.[1][2][3][4] A person who is diagnosed with pedophilia must be at least 16 years of age, but adolescents who are 16 years of age or older must be at least five years older than the prepubescent child before the attraction can be diagnosed as pedophilia.[1][2]

    Pedophilia has a range of definitions, as found in psychiatry, psychology, the vernacular, and law enforcement. The International Classification of Diseases (ICD) defines it as a “disorder of adult personality and behaviour” in which there is a sexual preference for children of prepubertal or early pubertal age.[5] It is termed pedophilic disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), and the manual defines it as a paraphilia in which adults or adolescents 16 years of age or older have intense and recurrent sexual urges towards and fantasies about prepubescent children that they have either acted on or which cause them distress or interpersonal difficulty.[1]

    In popular usage, the word pedophilia is often incorrectly used to mean any sexual interest in children or the act of child sexual abuse.[3][6][7][8]

    parents do have concerns in that area, and so does law enforcement. Hell, I’d even go so far as to say “responsibilities” when it comes to children under the age of consent being exploited by older people

    While that is certainly true, from the facts thus far presented it does not seem to me to apply in either the VA or FLA cases. More could come out in the VA case that would make the parents bringing in the police valid, but condemning anyone other than the police and prosecutors in this case seems hasty.

  42. anjin-san says:

    @ Grewgills

    That is a rather nonsense definition.

    Indeed. This was explained to Jenos repeatedly during the discussion of the Katylin Hunt affair. It kind of gives lie to his claim to be a disinterested party who is simply concerned about the well being of a child.

  43. anjin-san says:

    @ Jenos

    And you were more offended by my description of the acts than the acts themselves.

    Quite correct. Sex between teenagers is normal. Your interest in it is not.