Virginia Lawyers Weekly VA Lawyers Weekly
The Virginia State Crime Commission has decided against offering legislation to the 2015 General Assembly to soften criminal penalties in teenage sexting cases.
The commission studied sexting – using a cell phone to take and send sexually suggestive photos – in 2009 and again this year. During their Dec. 2 meeting, the commission reviewed proposals from the Virginia Criminal Justice Conference, a think tank of prosecutors, defense lawyers and judges, to define misdemeanor offenses for sexting and authorize deferred dispositions for first offenders. Currently, sexting may be prosecuted under felony child pornography laws.
News stories have drawn fresh attention to Virginia’s legal framework for responding to sexting, including an account earlier this year of a sexting “ring” in Louisa County. Over 1,000 images of underage teens had been posted on Instagram accounts, and over 100 teenagers were involved in some way, according to a local investigation.
The “intent is to avoid the draconian impact of a felony charge,” said Deputy Attorney General Linda Bryant, who represented Attorney General Mark Herring at the Dec. 2 commission meeting.
But there is no consensus that establishing misdemeanor offenses for taking, possessing and transmitting lewd photos is necessarily a better way to handle the conduct. For instance, the Virginia chapter of the American Civil Liberties Union opposes criminalizing sexting with new statutes and says the behavior should be addressed by parents and school officials, not prosecutors and judges.
A typical case that might warrant gentler treatment may be the kind described by a commission member, Brunswick County Sheriff Brian Roberts: A boyfriend and girlfriend break up. Someone’s upset and shares a revealing picture. For law enforcement, “there’s only one option – child pornography.”
“I would prefer it not be a felony offense,” Roberts said. “I think taking this criminal avenue is a little too aggressive.”
The VCJC recommended creating a first offender provision for sexting that would mirror language used for Virginia’s first offender option for drug possession.
“We already do that in Lynchburg,” Lynchburg Commonwealth’s Attorney Michael Doucette told fellow commission members. “We have been doing it for years. We do this pre-charge so it’s not a charge on anybody’s criminal record.” His office works with parents to see that penalties are imposed, starting with loss of cellphone privileges.
“But in some other jurisdictions, there’s a lot of pressure on some commonwealth’s attorneys to ‘do something,’” especially from the parents of a young person whose picture has been circulated. The parents can get “really irate,” he said.
“Somebody can be pushing really, really hard and screaming to ‘do something’ and the only ‘something’ out there is a felony” that can carry a 20-30 year sentence, Doucette said.
“Because so many cases come into the juvenile and domestic relations district courts, it’s hard to get data” on the number of sexting cases in the court system, G. Stewart Petoe, the commission’s legislative director told commission members.
“We don’t know the breakdown” of cases coming into the system, which can range from relatively “benign” sexting after a break-up when a picture is shared in school, to serious deviant behavior, Petoe told the commission.
“We need to know with some particularity what we’re looking at,” Del. Manoli Loupassi, R-Chesterfield, said. Loupassi also serves on the crime commission.
“My sense is prosecutors are making fairly good common sense decisions” in teen sexting cases. Cases like the recent Manassas prosecution of a teen boy who faced a search warrant intended to compare his anatomy to a cellphone picture are “off the chain,” Loupassi said, and “that’s what’s making people want to act.”
The Manassas case “may have evolved because the minor in question refused to accept a deferred disposition,” according to Del. Todd Gilbert, R-Woodstock. Then the prosecutor had to move forward to make the best possible case.
“If we were to change the law,” Loupassi said, a new misdemeanor offense “will become the default position for prosecutors. They will take a guaranteed conviction on a misdemeanor,” but “that might not keep us safe,” he said. “I’m not getting any information that there’s a tremendous amount of wrongful convictions.”
Wrongful convictions aren’t the problem, Doucette said, it’s the “ostracizing, the bullying, the suicide. The problem is what happens in schools afterward, not the wrongful convictions.”
