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By Anne Collier

The Washington Post has done some important reporting on a teen sexting case in Virginia, spotlighting what could (should) go down in history as a textbook example of how police can abuse rather than enforce child pornography law in the digital age. A 17-year-old boy “is facing felony counts of manufacturing and distributing child pornography,” the Post reported. I’ll let you read the Post coverage for details, but the short version is this:

The boy’s 15-year-old girlfriend reportedly sent him sexting photos of herself. In response, he allegedly sent one or more sexting videos of himself. Perhaps justifiably, the girl’s mother filed a complaint against the boy, but – not as understandably – charges were brought against him only.

The case was dismissed last month on a technicality, but then prosecutors filed charges again and this time took nude photos of the boy against his will. His lawyer told the Post that the state’s attorney said that, if her client didn’t plead guilty, the police “would obtain another search warrant ‘for pictures of his erect penis,’ for comparison to the evidence from the teen’s cell phone.” The boy’s lawyer “asked how that would be accomplished and was reportedly told that ‘we just take him down to the hospital, give him a shot and then take the pictures that we need’.” As the Post reports, the charges against the boy “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.”

Prosecuting or committing child sex abuse?

How is such behavior on law enforcement’s part different from its charge against the boy of “manufacturing child pornography”? How is it also not a form of child sexual victimization?

The police released a statement defending their actions (the Post published it here), including these words: “It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case.” Which begs the question: How was their taking photos of a naked minor not “invasive”?

Backpedaling on the 2nd ‘photo session’

Shortly after the Post’s article was published last week, the Manassas police announced they would not serve that second search warrant involving the hospital trip.

Certainly more information about this case will emerge, but the only new information that could possibly justify sex offender status for and felony charges against a minor – but never justify, it seems to this non-lawyer, production of naked photos of a minor by police – is finding that there was criminal intent behind the boy’s actions. So far, however, there is no indication that there was anything going on but private, non-coercive sexting. If either the boy or the girl was actually making the photos or videos public, then “distribution” was involved, but law enforcement must look carefully at intent before putting a distribution charge on a teen. Can’t police and courts at least try to distinguish between criminal and adolescent intentions so that minors, at least, can be allowed second chances before charges are brought?

Important typology of teen sexting

It has been three years since the Crimes Against Children Research Center published a typology of youth sexting for schools and law enforcement, making a clear distinction between “experimental” and “aggravated” sexting. The CCRC defines the aggravated kind as involving “criminal or abusive elements beyond the creation, sending or possession of youth‐produced sexual images” (emphasis mine). The additional elements, I wrote in 2011, include either adult involvement in the sexting or criminal or abusive behavior by the minors. The latter might include conditions in three categories: 1) sexual abuse, extortion, threats; 2) malicious conduct arising from interpersonal conflicts; or 3) creation or sending or showing of images without the knowledge or against the will of a minor who was pictured. If these conditions are not met in teen sexting cases after thoughtful investigation, how could charges be leveled against a teen?

Let’s hope that, because of this Virginia case, more and more courts and law enforcement people will find and use this typology to help them with their investigations, so that children aren’t unjustifiably victimized by law enforcement in the name of laws aimed at protecting them from victimization.

I wrote a followup to this post after sentencing in this case for that, please click here.

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