Sometimes life is nearly beyond parody. From The Washington Post:
A Manassas City [Virginia] teenager accused of ‘sexting’ a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said. A Prince William County judge allowed the 17-year-old to leave the area without the warrant being served or the pictures being taken — yet.
The teen is facing two felony charges, for possession of child pornography and manufacturing child pornography, which 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. David Culver of NBC Washington first reported the story and interviewed the teen’s guardian, his aunt, who was shocked at the lengths Prince William authorities were willing to go to make a sexting case in juvenile court.”
OK. There must be more to it. A couple of teenagers sending naughty photos of themselves isn’t something that leads to felony charges when sane police officers are involve. This kid must be some kind of crazed sex predator. Not so much:
“Foster said the case began 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 [ the boy’s attorney] said. The male teen was served with petitions from juvenile court in early February, and not arrested, but when the case went to trial in juvenile court in June, Foster said prosecutors forgot to certify that the teen was a juvenile. The case was dismissed, but police immediately obtained new charges and also a search warrant for his home. Police also arrested the teen and took him to juvenile jail, where Foster said they took photos of the teen’s genitals against his will.
Oh. So the 15 year-old girl actually initiated the exchange of, ahem, close personal photography, and it was the girl’s mother that apparently started the legal ball rolling. But what’s going on with the police? Photos of the kid’s “erect penis?” They’re kidding, right? Not so much:
The case was set for trial on July 1, where Foster said Assistant Commonwealth’s Attorney Claiborne Richardson told her that her client must either plead guilty or police would obtain another search warrant ‘for pictures of his erect penis,’ for comparison to the evidence from the teen’s cell phone. Foster asked how that would be accomplished and was told that ‘we just take him down to the hospital, give him a shot and then take the pictures that we need.
Yeah, I can see the police lineup now. The 15 year-old and her mother are brought into a room with a one-way window. The lights snap on in the line-up room, and there they are: five cocky, erect penises.
Detective: “Now take your time; do you recognize any of these…dicks?”
15 Year-Old: “I’m not sure, but number 5 looks pretty hot…”
Mother: “It’s Number 2; the slumping one. I’m sure of it! I’ll never forget that…whatever you call it!”
Detective (to officer): “It’s Number 2. Slap the condom on!”
In Virginia, apparently a guardian ad litem–someone whose job is to look out for the best interests of the child–can be appointed in such cases. They appear to be doing their job:
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,’ Flores Laboy said, ‘to take a picture of this young man in a sexually explicit manner. The irony is incredible.’ The guardian added, ‘As a parent myself, I was floored. It’s child abuse. We’re wasting thousands of dollars and resources and man hours on a sexting case. That’s what we’re doing.
In order to understand this better, let’s examine the statute involved:
18.2-374.1. Production, publication, sale, financing, etc., of child pornography; presumption as to age; severability.
A. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, “child pornography” means sexually explicit visual material which utilizes or has as a subject an identifiable minor. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor.
For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term “sexually explicit visual material” means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer’s temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.
B. A person shall be guilty of production of child pornography who:
1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or
2. Produces or makes or attempts or prepares to produce or make child pornography; or
3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or
4. Knowingly finances or attempts or prepares to finance child pornography.
Do I really need to write a disclaimer certifying that I support prosecution for adults that are involved in genuine child pornography? For those seeking such assurance, consider it given. Anyone that abuses or uses children in any way deserves more than the law can give them.
I suspect that this particular statute is a First Amendment lawsuit just looking for an excuse to happen. Notice that section A doesn’t require that the police be able to actually identify the “victim.” How the police could determine that the “victim” was a minor by means of a “unique birthmark” or “other recognizable feature” without actually knowing the identity of the minor is mind-boggling. How could you compare a birthmark or other recognizable feature without knowing the identify of the person being used in the comparison?
One of the primary principles of criminal law is that if there is no victim, there is no crime. For example, Jane Doe is missing and the police suspect she has been murdered, but without Jane’s body, there is no way to prove murder. In this case, the police might suspect nude photos are of a minor, but without being able to positively identify the possible child, there is no way to determine if they really were a minor when the photo or other image was taken.
The definitions in Section A are also troubling, but explain the fixation of the police on an erect penis. Notice that art, including drawing and sculpture, are also implicated. Under this statute, no small number of priceless masterworks are surely child pornography. The erect penis arises (sorry–couldn’t help myself, hee, hee, hee) because a depiction of “sexual excitement” is child porn. No doubt the state would argue that an erect penis is prima facie (snort!) evidence of sexual excitement, unless of course it’s produced via injection in the pursuit of justice rather than pleasure. We certainly wouldn’t want the police to be having erections while doing their jobs. I’d actually rather not even think about that, knowing police officers as I do. I must admit, in all my years in law enforcement, it never occurred to me that justice could be found in shooting up a 17 year-old boy to give him an erection. Nor did it ever occur to me to want to photograph the result of that sort of application of crime-stopping technique.
And what of young ladies? Is an erect female nipple evidence of sexual excitement, and hence, child porn, or merely evidence that she’s cold? And would it have to be nude, or would the outline of said nipple poking its way inexorably through bra and sweater suffice?
Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.’
Special software for penile comparison? I wonder if that’s available in an iPhone app?
Perusing the statue, it seems that the intent of the legislature was to criminalize the actions of those who exploit children for sexual purposes. When the supposed “victims” are teenagers willingly engaging in the kind of technological foreplay about which earlier generations could only dream–of had to enact in person–such statutes become troublesome.
Obviously no person of good will thinks sexting among teenagers a good thing. Sexual intimacy is one of life’s great pleasures and can forge a powerful bond among people ready and able to accept the responsibilities of adult intimacy. All too often–probably for the most part—teenagers aren’t capable of being responsible in that way, and the digital age makes possible all manner of mischief that most can’t truly imagine.
Still, what we have here appears to be nothing more than a boy and girl engaging in relatively harmless flirting–obviously explicit flirting–but a contemporary, digital version of flirting nonetheless. I can only say that I would not refer such a case for prosecution under this statute knowing what I know about it from news accounts. To be entirely fair and consistent under the rule of law as it is being applied in Virginia, the young lady, who also apparently produced child pornography–of herself–should also be prosecuted. Of course, in both cases, the pornographer and the victim appear to be the same person(s), which one might think would complicate things in court:
15 Year-Old Victim: “It was terrible! I felt so used and degraded!”
15 Year-Old Pornographer: “It was great! I felt so used and degraded!”
There is another problem: what the hell could the police be thinking? They’re obviously trying to compare a photo–or photos–of an erect penis they think belong to the 17 year-old pornographer/defendant with photos of the penis of the 17 year-old alleged pornographer/defendant. Apparently, there are no particular birthmarks or other distinguishing features relating to the inflammatory (heh) organ in question. Any such attempt, particularly in this context, would cause the case to degenerate to farce. I can see the testimony now:
Prosecutor: “State your name and profession for the record, please.”
Turgid: “Dr. I.M. Turgid. I’m a comparative penilologist.”
Judge: “Excuse me, did you say a ‘penologist?’”
Turgid: “No, your honor. I’m a penololpgist. I compare and analyze penises. Penises of all shapes and sizes. I’ve always had a fascination, since the first time I saw one, as a child, rising majestically…”
Defense Attorney: “Objection!”
Prosecutor: (a look of panic on his face) “Uh Doctor Turgid…”
Judge: (banging gavel) “Order in this court! Put that thing away!” (women screaming, general mayhem)
As a former law enforcement officer, I have seen many penises–only professionally, of course. The problem is that penises, unlike fingerprints, are not unique. A given penis does not exist in two separate and distinct states: flaccid and erect. A man’s penis might look quite different in every dimension from one erection to the next. Those with access to actual penises can see this for themselves, if they’re into that sort of thing… Following illness or injury, a raging penis of photographic fame might never again achieve its former awe-inspiring glory.
I was, for many years, actually responsible for rolling the fingerprints of arrestees, and developed considerable skill, for it really is more art than science in many ways. Trying to “roll” a penis in ink to give an impression that can be compared is–well, I’ll let you struggle with that mental image, gentle readers. The Three Stooges would pale in comparison. Had that been necessary, I certainly would have struggled with it…er, them.
There is simply no “science” that can allow anyone, doctorate or not, to look at a photo of one penis and say with any kind of reliable certainty that the photo of a second penis is or is not the same penis. So again, what the hell could the police be thinking?
Apparently the burgeoning (heh-heh) controversy caused the police to rethink their plan to get a rise out of the defendant (hee, hee, hee!):
Manassas City police said Thursday they would not serve a search warrant seeking to take photos of a 17-year-old boy charged with ‘sexting’ an explicit video to his 15-year-old girlfriend earlier this year. [skip]
On Thursday, Prince William authorities decided to drop that plan. Lt. Brian Larkin of the Manassas City police said, ‘We are not going to pursue it.’ He said the police planned to allow the search warrant, obtained last week, to expire. He would not say why the decision had been made to abandon the warrant or discuss the reasons for the search.
Actually, it’s a good thing the officers involved allowed their plan to shrivel. This is the sort of thing upon which deservedly embarrassing and never-dying nicknames are based. The ribbing would have been merciless, sufficient to emasculate the most upright police officer.
Larkin referred further questions to Prince William Commonwealth’s Attorney Paul B. Ebert. Ebert did not immediately return a call seeking comment.
I’ll bet. This is a case no amount of Viagra could rescue. The smart thing to do would be to drop it, and let nature–and the respective parents–take their course.
Stately McDaniel Manor 
Here is a question. Could the police be considered engaging in child pornography with taking of pictures of the child’s genitalia without the child’s consent? I am not a lawyer here, but I consider that far more damaging than the “child pornography” engaged by these two juveniles.
Dear Joel:
According to the statute, which has no exemption for law enforcement, that would appear to be the case. However, remember that it is the police that investigate crimes, and if they don’t present their own criminal acts to the prosecutor, who will prosecute them?
It’s actually a tricky issue. In many ways, we want the police to be able to violate the law, at least in small ways, because to do less could actually endanger lives. On the other, we absolutely don’t want them to do it in ways that imperil the liberty of others, or that endanger others. Sometimes the line is a bit blurry.
Read that section A again, and then start to think like a lawyer:-
I have a head start on this because I actually heard of some “child” porn sites who got prosecuted even though they thought they had found a loophole: take pictures of adults, then process them with suitable software to make the subjects look young enough for the market. The lawyers got them anyway, arguing that the public interest was the same, just as it would be if someone had used pictures of someone long dead by then, and so on.
Now back to your statement. Nobody has to “determine if they really were a minor when the photo or other image was taken” to get a successful prosecution, any more than the massaged images had to be of genuine children in the case I mentioned. All they need to show is that the image is “as a minor” – not “of a minor” or “when a minor”. That is, all they need to show is that the image is being used in that way, as that of a minor. Obviously, that is self evident when the image is of a minor, but the precedent I cited shows that it need not be such.
Sure, it’s a quibble. It was just such a quibble that got the people I mentioned, even though they weren’t guilty of ever harming any children.
Dear P.M.Lawrence:
Good points. This is the problem with such statutes. In a well-intentioned attempt to protect children, legislators often sweep up expression that must be protected under the First Amendment if we are to remain a free people. Under this and other statutes, even paintings, sculpture and photography that are unquestionably art could easily be prosecuted as child porn if a police officer and/or prosecutor decides the people depicted appear to be minors regardless of their age, or of the fact that they have never existed. In such a case, the long-sought goal of many women of looking eternally youthful could be dangerous indeed.
What, no references to Anthony Wiener?
You really brought the issue to a head (sorry; your style has rubbed off on me… darn it, did it again) when you mentioned that the underage male was arrested, but not the underage girl, when both engaged in the same behavior – behavior that either doesn’t apply equally to either, or does apply equally to both.
I guess the ultimate conclusion is that minors are not legally entitled to take nude photographs of themselves? As a legal/constitutional argument, that’s one I might be able to buy (I still think the First Amendment applies, but hey, maybe there are penumbras).
They’re not arguing that the male minor committed sexual harassment, or sexual deviancy, contributing to child delinquency (or similar) for sending the female minor the sexually explicit photograph(s) he took of himself.
No; in this case, they’re arguing that the male minor produced child pornography. Prosecutors are basically arguing that the criminal is the victim: a minor took a sexually explicit photograph of himself, thereby exploiting himself.
They’re also arguing that the male minor was in possession of child pornography due to being in possession of the sexually explicit photograph(s) the female minor took of herself and sent to him. (Or at least, I assume that’s the reason for the possession charge.) That’s a more interesting charge, but we’re still talking about the behavior of two morally (albeit not legally) consenting individuals, engaged in a relationship with each other. If the law allows for minors to have sex with each other, surely sexting would fall under the same justification.
Dear Chip Bennett:
Penumbras and emanations too, I’m sure. As you note, this case raises a number of disturbing questions. Is a selfie not shared with anyone else child porn? Does an alluring photo of one’s girlfriend, even though it displays no actual nudity, constitute “sexual excitement” under the law, making its production and possession child porn?
The police and prosecutor have surely gone a bridge too far in this case.
This is fucking insane. A 15yr old and a 17 yr old; a horny senior and a horny sophomore want to fuck and have fun. Mom is prude and calls cops on consensual horny high school-ers using the media medium of the day. Not the smartest thing to be doing given the record button of the internet, but these are consenting kids.
What the fuck is going on with that city and our culture in general. I am going apoplectic at the gargantuan stupidity and outrage of this.
A sophomore girl wants to fuck a senior guy. Have at it. Use protection. Be smart. And avoid getting too much heartache when he leaves for college. That is fucking all.
What was a joke 30 years ago in Porkys is reality today.
http://www.hulu.com/watch/28449
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