Update: Manassas City police say they will not serve search warrant in teen ‘sexting’ case

Manassas City police and Prince William County prosecutors are taking a unique approach to collecting evidence in a “sexting” case involving a 17-year-old male: Authorities want to take a photo of the teen’s erect genitalia to compare with a cellphone video allegedly sent to his girlfriend, his attorneys said.

The case has sparked anger from the boy’s family, local lawyers and legal observers, who say that the amount of time and re­sources spent by law enforcement on private messages between teens is excessive.

The teen’s attorneys are particularly incensed that investigators want to take him to a hospital for an injection that would force him to become erect.

The teen is facing two felony charges in juvenile court, manufacturing and distributing child pornography, which could lead not only to incarceration until he’s 21 but also to inclusion on the state sex offender registry, at a judge’s discretion, for up to the rest of his life.

“The prosecutor’s job is to seek justice,” said the teen’s defense attorney, Jessica Harbeson Foster. “What is just about this? How does this advance the interest of the commonwealth? . . . Taking him down to the hospital so he can get an erection in front of all those cops, that’s traumatizing.”

Manassas City police released a statement Wednesday night saying that the case was opened because the teen allegedly sent “pornographic videos . . . after repeatedly being told to stop.” The police said it was not their policy, nor the prosecutors’, “to authorize invasive search procedures of suspects in ­cases of this nature, and no such procedures have been conducted in this case.”

Foster noted the warrant was discussed by prosecutors twice in open court, both before and after it was obtained, although it had not been made public because it has not been served — a Prince William judge allowed the 17-year-old to leave the area before the warrant was served and the photos could be taken. The Washington Post is not naming the teenage defendant. The case was first reported by WRC (Channel 4).

Advocates at the National Center for Missing and Exploited Children and officials at the Justice Department have issued cautions not only about the dangers of sexting but also about the dangers of overreacting to sexting. “You have to take every case seriously,” said John Shehan of NCMEC. “But you have to look at different scenarios. . . . We don’t think a blanket policy of charging all youths is going to remedy the problem.”

Shehan said the NCMEC also “recognizes the consequences of charging a teenager like this, there can be a lifetime of repercussions. We don’t necessarily think that’s the best way to go in the more-minor situations.” A Fairfax County legislator proposed in this year’s General Assembly session that sexting between minors be reduced from a felony to a misdemeanor, but the bill was defeated in a House subcommittee.

Michael J. Iacopino, a veteran New Hampshire defense lawyer and member of the National Association of Criminal Defense Lawyers’ sex offender policy task force, asked, “What’s the scientific background to establish any distinction or difference [between the photos]?”

Foster said the case began in January when the teen’s 15-year-old girlfriend sent photos of herself to the 17-year-old, who in turn sent her the video in question. The girl has not been charged, and her mother filed a complaint about the boy’s video, Foster said. He was served felony “petitions” from juvenile court but was not arrested.

In June, after the case was dismissed on a technicality, prosecutors refiled the charges. This time, Manassas City police arrested him and took photos of his genitals against his will, Foster said.

The case was set for trial on July 1, at which time, Foster said, Assistant Commonwealth’s Attorney Claiborne Richardson II told her that her client must either plead guilty or police would obtain another search warrant for comparison to the evidence from his cellphone. Foster asked how that would be accomplished and said she 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 and received a continuance so police could obtain a search warrant for the photos of his genitalia. 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 Tuesday.

Despite two discussions of the warrant by the prosecutor in juvenile court, Prince William County Commonwealth’s Attorney Paul B. Ebert said that police told him “these allegations [by the teen’s lawyers] lack credibility.” He said he would look into the matter further but did not respond to subsequent inquiries.

Carlos Flores Laboy, appointed the teen’s guardian ad litem in the case, said he thought it was just as illegal for the Manassas City police to create their own child pornography as to investigate the teen for it.

“They’re using a statute that was designed to protect children from being exploited in a sexual manner to take a picture of this young man in a sexually explicit manner,” Flores Laboy said. “The irony is incredible.”