‘Sexting’ case points to need for reform, critics say

The high-profile case of a 17-year-old Manassas boy accused of sending explicit photos to a 15-year-old girlfriend has been resolved for now.

The youth – not named because of his age – went to court Aug. 1, when a judge agreed to take two felony charges under advisement for a year while imposing tight restrictions.

The case gained national attention when law enforcement officials – faced with a rejected plea offer – determined to seek a photograph of the boy’s genitalia, using a chemical injection if necessary to force an erection.

The police apparently wanted to compare the result with images sent to the girl’s cellphone.

While details of the search warrant occupied the national media, some observers in Virginia questioned the use of the state’s felony child pornography laws in a case of youthful indiscretion.

The defendant initially was charged with manufacturing and distributing child pornography, violations of laws designed to protect young victims from adult predators.

The boy had taken pictures of his genitalia and sent them by text to his girlfriend. Her mother found out somehow, according to Jessica H. Foster, the Manassas attorney who represented the defendant. The mother reported the pictures to police.

Police never talked to the girlfriend, Foster said, nor did they ever suggest the possibility of any charges against her, despite an exchange of explicit images between the two.

The original charges were dismissed and replaced with charges of possession and distribution of child pornography. Convictions would have meant a felony record for the young defendant and the requirement to register as a sex offender.

In court, Foster argued there was no victim in the case because the text messaging made it clear the two teens had a consensual relationship. She said a law meant to protect juveniles was being misused to prosecute a juvenile.

Prince William County Juvenile and Domestic Relations Judge George M. DePolo did not reject the charges, but he was reluctant to find the youth guilty.

“I don’t want to see a young man start off with any convictions,” he said, according to media accounts.

DePolo said he found the facts sufficient for a finding of guilt, but he took the charges under advisement for a year and placed the youth on probation, Foster said. Conditions include 100 hours of community service, no access to social media or anything else on the Internet and no texting.

The use of the child pornography statutes irks Foster and other advocates.

“It’s meant to protect children from being induced to become models. It’s geared toward adults,” Foster said.

That was the argument at the Virginia General Assembly earlier this year when Del. Scott A. Surovell patroned a bill to give prosecutors an alternative charge for teen “sexting” situations.

House Bill 1260 would have made it a class 2 misdemeanor for one minor to send a sexually explicit image of his own person to another minor.

The bill was championed by Jonathan L. Phillips, a Fairfax defense lawyer who used to prosecute computer crimes.

When the only applicable charge is a felony, Phillips argued, prosecutors have incentive to turn up the heat on a defendant, he said. Families are ripped apart in the process and kids can end up as convicted felons listed on the registry of sex offenders. Many schools will expel a student convicted of a child pornography offense.

The idea of a less punitive alternative charge failed to take hold, however.

“We kind of got shot down by the legislature,” Phillips said. In February, the Criminal Laws Subcommittee of the House Courts of Justice Committee voted without objection to table Surovell’s bill.

Phillips said the Manassas case could revive the debate over what tools and guidance to give prosecutors faced with explicit teen texting.

“I think it takes a case like Manassas to make everyone stop and think. People realize how difficult it can be to keep these laws on the books,” Phillips said.

“I would more than welcome another effort to get this passed,” he said, referring to the misdemeanor sexting statute.

The American Civil Liberties Union of Virginia opposed the idea of an alternative law for teen sexting. The group fears some prosecutors – who might otherwise decline any criminal prosecution – would bring charges if there were a law tailored to teen sexting.

The ACLU says indiscreet teen photography should not be prosecuted at all. “[S]exting between teens is dumb, risky behavior, but it should not be a crime,” wrote ACLU lawyer Rob Poggenklass in a published essay.

“It’s just mind boggling that we would even consider doing that to one of our own kids,” Poggenklass said in an interview, referring to the child pornography prosecution.

While the search warrant for a priapic photograph sparked outrage, the serious charges against the Manassas teen remained even after the warrant was withdrawn.

“His attorney still had to fight to keep him from getting felony convictions,” Poggenklass said.

In 2010, the ACLU successfully defended a 14-year-old Virginia boy who was charged with possession of child pornography after he received explicit photos on his phone from a girl who attended his school. At the time, the civil rights group called on the legislature to clarify that teen texting was not a crime.

The legislature has declined to do so.

Foster, the attorney for the Manassas defendant, agreed that his conduct should never have been considered a crime.

“I think the best way to handle it would probably be a CHINS-type procedure,” she said, referring to Virginia’s informal, community diversion court programs for children in need of services or supervision.

“The court has lots of power in a CHINS case,” Foster said.

It was not clear whether any legislative change might be considered in 2015. Surovell was not eager to try again to pass a misdemeanor sexting statute. Delegates on the criminal subcommittee “are not predisposed to lowering the sentences for any situation,” he said.

Claiborne T. Richardson II, the prosecutor in the Manassas case, did not respond to requests for comment.