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imagesOn July 14, 214 I wrote an article titled: “Virginia: Child Porn And The Penile Code.”

It chronicled, in tongue-in-cheek fashion, one of the strangest law enforcement cases I’ve ever seen. A 17 year-old boy and 15-year old girl exchanged intimate photos of each other, and the boy sent a nude video, apparently of his penis (presumably among other things), to the girl. The girl’s mother complained. None of that is strange.

What’s strange is the police obtained a warrant to inject with boy with drugs that would provoke an erection so they could photograph it and compare it to the penis in the video. The police investigator, one Detective David Abbott, actually claimed to have penile comparison software. I’m not kidding. More seriously, I wrote:

As a former law enforcement officer, I have seen many penises–strictly 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?

The police and prosecutor actually did something smart: they dropped the penis comparison plan. I noted:

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.

Amazingly, Detective Abbott couldn’t let sleeping penises lie. He’s actually filed a defamation lawsuit against the boy’s attorney: 

In order to secure proof that the penis in the offending video actually belonged to the teen being charged, police obtained a search warrant to manufacture child pornography chemically induce an erection and take a photo of the suspect’s erect penis. This bizarre action was prompted by the teen’s refusal to plead guilty. And was taken despite the fact that police already had taken photos of his non-erect penis during his post-arrest detainment at the juvenile jail.

This strange tactic was criticized publicly by the teen’s lawyer, Jessica Foster, in an interview with the Washington Post, in which she specifically complained about Detective David Abbott:

‘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.’

This, of course, was only one of hundreds of similar reactions, most of which also arrived at the same conclusion: inducing an erection in a teen suspect and taking pictures of it is ‘crazy.’ But only one person is being sued (so far) for expressing their opinion of Det. Abbott and his warrant.

‘The lead detective in a high-profile teen ‘sexting’ case from last summer, in which Prince William County authorities sought to take sexually explicit photos of a 17-year-old teen to compare with the evidence, has filed a defamation lawsuit against the teen’s attorney for making critical comments about the investigation in The Washington Post. […]

Abbott’s lawsuit claims that Foster’s comment ‘materially misstates Abbott’s discussions with Foster,’ and that claiming such an investigative approach was ‘crazy’ in turn ‘asserts unfitness to perform the duties of his office or employment, with a direct intention to bring Abbott under scrutiny from the media and from the public.

Well. That sounds serious. Perhaps local authorities are involved?

Abbott’s lawsuit is at least as ridiculous as the police activity that inadvertently prompted it. Foster’s lawyers have already filed a response pointing out that the statement is not defamatory and is ‘constitutionally protected opinion and rhetorical hyperbole.’

Even Abbott’s own department isn’t interested in backing this lawsuit.

Manassas City Police Chief Douglas Keen said Abbott filed the suit independently and did not consult him, and Keen said he had no position on the civil case.

My original article did not deal in particular with something of an obsession of many that reported on the case: the idea that in trying to serve the warrant, the police were themselves creating child porn. I did note that the Virginia law involved was so broadly written as to have many unintended consequences, and that it made no specific exception for police officers acting in their official capacity. However, this is the case virtually everywhere. Police officers often have to do things that, done by others, would be illegal. Those things are, generally, absolutely necessary to doing the public’s business, and it’s usually not an issue.

But in this increasingly absurd case, that “creating child porn” meme seems to be a sore spot, and Abbott and the prosecutors are engaging in a bit of blame tennis:

In the sexting case that has recently garnered so much attention, the investigating detective with the Manassas City Police Department was instructed by a member of the Commonwealth’s Attorneys’ Office to obtain a search warrant in order to photograph, for evidentiary purposes, the genitalia of the defendant. Upon consultation with the identification expert, the prosecutor subsequently authorized a second search warrant seeking a photograph of the erect penis of the defendant…

Many have expressed concern at what they believe to be an extreme measure in this type of case. However, when a criminal defendant, adult or juvenile, decides to exercise his or her right to a trial, it is necessary for the prosecution to explore all legal avenues of evidence collection in order to prepare for trial…

What Abbott seems to object to most (beyond being called “crazy”) is Foster’s insinuation that this erect penis photography session was all his idea.

‘This statement implies that Abbott conceived of the idea, that he desired to obtain the photographs, that he would take actual photographs, and that he would personally execute the comparison.’

Abbott may resent this implication, but as Scott Greenfield points out, the detective did nothing to head off this regrettable warrant application, no matter who actually ordered it.

Police officers often end up doing things under orders they wouldn’t do on their own. Still, the ultimate issue was Abbott’s judgment. Who would want this particular issue to–ahem–spring up again?

Finally, the lawsuit notes that Abbott has suffered immensely since the story blew up back in July, listing all of the following:

‘intense media and public scrutiny, embarrassment, shame…injury to his reputation as a law enforcement official…hundreds of emails that included pornographic or threatening material…telephone calls threatening death or other actions…’ […] ‘severe emotional distress…which resulted in counseling with a psychologist and the need for medication.

Well, Abbott can’t say I didn’t warn him. It’s his fault he allowed this case to get a rise out of him. Ooops. I mean, he shouldn’t have been so stiff-necked…darn…he shouldn’t have allowed his emotions to inflame his…oh, I give up. Considering the apparent horror of Abbott’s life due to his own choices, I can’t say I feel terribly sorry for him. Nor can I say I feel particularly good about his ability to continue to function as a police officer. It’s a stressful job, but when you make a mistake, you take the ribbing and move on. If this is really bothering him so much, he just caused the penis to once again rear its ugly head.