The recent efforts of Manassas police and Prince William County prosecutors 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.
The 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.”
Because of the cap it placed on the number of images a minor could possess, Surovell’s legislation would not have affected a recent case in McLean in which a high school sophomore boy was accused of posting more than 50 explicit photos of underage girls to an online shared account. But no charges are anticipated in that case, a spokesman for the Fairfax County police said.
That was news to the mother of one teenage girl whose photo was involved, who said she and other parents were told a case would be pursued. The mother was already distressed because her daughter had been pulled out of class and questioned by a police officer, she said. The mother said she was later told that the officer was only supposed to hand the girl a sheet of paper outlining the case.
“The laws are outdated and literally make my daughter a violator,” the mother said.
Nineteen states have passed laws making sexting between teens a lesser offense than distribution of child pornography. Lawmakers in many others have tried and failed.
A 2013 Pew Research Center survey found that 44 percent of 18- to 24-year-olds with cellphones have received sexts and 15 percent had sent them. Numbers for minors are scant, but a 2012 academic study of 606 students at a private high school in the southwestern United States found that 20 percent said they had sent a sext and about twice that number said they had received one.
In Manassas, public disapproval of the enforcement of the law appears to have had some impact. The search warrant for police to photograph the teen’s erect penis has been dropped. A flaccid explicit photograph of the 17-year-old that had already been taken by authorities won’t be used in the case. But the teen is scheduled to face trial on Aug. 1st. He is expected to plead not guilty.