There’s a lot going on in this case. We can start with Paul Ebert, a dinosaur of the Virginia criminal justice system. I wrote a bit about Ebert’s history in a previous post here at The Watch about prosecutorial misconduct. The general takeaway is that Ebert, who has been in office for more than 40 years, has a long and sordid history of poor judgment yet has never been sanctioned or disciplined for his conduct. In 2011, his office was the subject of a blistering opinion by the U.S. Court of Appeals for the 4th Circuit. As Andrew Cohen points out in the linked article, it wasn’t the first time that has happened.
But the most pressing concern here is why this kid was pursued with such vigor in the first place. The very notion that the state of Virginia would need to sexually exploit a minor in order to protect minors from sexual exploitation serves as a tidy microcosm of the “sexting” debate in general: Too many schools, police, judges and prosecutors have concluded that we must destroy these kids in order to save them.
Hormonal teenagers have been showing their bodies to one another since there have been teenagers and hormones. Sexting adds a third element to the mix: technology. Teens, sex and technology. Any two of those can spark a media frenzy and reactionary public policy. Mix all three, and you’ve got a recipe for full-blown moral panic. For a great example of how this can affect a kid, see Nancy Rommelman’s terrific 2009 piece for Reason magazine, “Anatomy of a Child Pornographer,” which took an in-depth look at one such case in upstate New York.
Perhaps the best example of the absurdity of this approach is a 2007 case in Florida, in which a 16-year-old girl and a 17-year-old boy were convicted of “directing or promoting a photograph featuring the sexual conduct of a child” and possession of child pornography for e-mailing explicit photos to one another. The two hadn’t broken the law by having sex, only by creating, sending and possessing photos of their sex. In upholding the convictions, a Florida appellate court judge wrote, “Mere production of these videos or pictures may . . . result in psychological trauma to the teenagers involved. Further, if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives.” The state of Florida had to protect these two minors from the theoretical damage to their lives or careers that might have been done had the photos been released by turning them into convicted child pornographers.
In a 2009 case, the Iowa Supreme Court upheld the conviction of an 18-year-old man who had sent a photo of his penis to a 14-year-old girl, who had requested it. Both parties said the entire episode was a joke, and there was no evidence presented that the photo had traumatized the girl. The man clearly showed poor judgment, but his conviction came with the requirement that he register as a sex offender. You can see the motives at work behind these cases in a statement Pat Trueman, an attorney for a religious advocacy group, gave to a local TV station after the verdict:
“This was a serious offense. He was producing obscenity and distributing obscenity, and to a minor at that. . . . But he also has to register as a sex offender — and [he] may be on that sex offender registry for a lifetime. So if anyone had any doubts, sexting is a very serious crime — and kids better get to know that.”
Note that Trueman defines the seriousness of the crime not by the amount of harm inflicted on victims or the damage the act itself does to society but on the seriousness of the punishment that lawmakers have attached to it. We should know by now that when drawing up crime legislation, lawmakers aren’t always engaging in a careful consideration of costs, benefits and the proper role of punishment in a criminal justice system. They’re often driven by outrage, media frenzies and a flare-up of we have to do something syndrome. (See also: laws named after dead people.)
Also in 2009, an Indiana prosecutor defended the felony charges he brought against a 14-year-old accused of “sexting,” explaining, “We’re doing these kids a favor by bringing charges, because it will encourage them to be more discreet.” (Jacob Sullum posted on yet another series of cases from 2009 here.)
The argument in favor of saving children from sexting is that the photos could wind up in the hands of a sexual predator. Perhaps that has happened, but I’ve followed this issue for several years, and I don’t recall a single such incident, much less a trend of them. I don’t think anyone would argue that it’s a good idea for minors to send explicit photos of themselves to one another. But there’s simply no evidence that the harm they’re imposing upon themselves by doing so justifies treating them as criminals.
In 2010, the U.S. Court of Appeals for the 3rd Circuit returned some sanity to the discussion by blocking a Pennsylvania prosecutor from using the threat of felony charges to force three girls to attend a six-month “educational program” about teenagers and sex. In this case, the girls weren’t even nude. The court sensibly found that the prosecutor was infringing on the parents’ right to oversee the upbringing of their own children. (Leaving this issue to parents to handle — imagine that!) In a rare bit of political comeuppance for prosecutorial overreach, local outrage over the case cost District Attorney George Skumanick Jr. reelection.
There are other issues at work here, too. In an effort to register their contempt for child exploitation and sex crimes, lawmakers have defined sex offenses so broadly that a teen sending an explicit photo to a boyfriend or girlfriend can qualify. Typically, when critics point out that a new law could be used in ways lawmakers never intended, supporters point to prosecutorial discretion. They argue that it’s ridiculous, even insulting, to suggest that a prosecutor would twist a law to bring charges against someone in ways the law clearly never intended — or that a judge would allow it. That police, a prosecutor’s office and a judge all saw nothing wrong with forcibly inducing an erection in order to pursue charges against a 17-year-old kid puts the lie to that argument.
Sex isn’t the only context in which we’re ruining kids under the pretense of saving them. We’re protecting kids from drugs by arresting and jailing them for marijuana possession. We’re protecting them from the (mostly nonexistent) problem of school violence by assigning law enforcement to patrol middle and high school campuses. The presence of law enforcement means that kids who were once reprimanded, assigned detention or possibly suspended for infractions such as fighting, throwing food or truancy are now fed into the criminal justice system.
And that’s the final lesson here. These stories are all symptoms of our increasing tendency to use the criminal justice system to “fix” the sorts of problems once addressed by families, schools, religious organizations and other civic institutions.
Perhaps the best thing we can do to help kids right now is to stop the people who are trying to save them.