Back in 2014 I wrote two articles about one of the oddest things I’d ever seen a law enforcement officer do. Those articles, Virginia: Child Porn And The Penile Code, and The Strange Case Of The Dick-Chasing Dick, told the story of a 17-year old boy and his 15-year old girlfriend who engaged in sexting, a common contemporary means of social—ahem—intercourse. In the course of that intercourse, the young man, who was then unidentified, sent a video of his erect penis to the young lady, who was likewise unidentified. The erection got a rise out of the young lady’s mother, who inflamed the police such that a Detective David Abbott became engorged with purpose and righteous indignation and was determined to catch the unknown perpetrator by means of hi-tech penile comparison. Abbott actually obtained a search warrant to photograph the young man’s naked body, including his penis, and when that didn’t work, obtained a second warrant to inject the alleged penis/perpetrator with drugs designed to cause an erection, the better to construct a penile lineup—of sorts. I had a bit of fun with that idea:
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!
The first article engaged in a thorough discussion of the social issues and the dangers of an overly broad, though well-intentioned—law. I also pointed out there is no scientific way to compare penises. True, Former President Bill Clinton’s penis was tentatively identified because it was reportedly distinctively angled, presumably to the left, but even fingerprint identification is arguably more art than science, and there are no such means of positively identifying a penis, as I illustrated in an imaginary scene from a trial:
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)
Both warrants were—wisely–quashed, and the penile offender was never punished. Needless to say, or perhaps not, the case blew up in Abbott’s face. Death threats, professional ridicule and ostracism, he even ended up under psychological care and was medicated. In the second article I wrote:
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.
A federal appeals court ruled Tuesday in favor of a Virginia man who, as a teen, was once ordered by a lower court to be photographed while masturbating in the presence of armed police officers.
It appears Abbot’s actions in the 2014 case were projection. In 2015, officers came to his home to arrest him on multiple charges relating to pedophilia. Rather than surrender, he shot and killed himself.
Ultimately, [Trey] Sims [the aforementioned 17-year old] served one year of probation. By early 2016, Sims sued Abbott’s estate, alleging violations of the Fourth Amendment, among other accusations. The Abbott’s estate’s lawyers argued qualified immunity, but the 4th US Court of Appeals ruled against them:
The 4th Circuit ruled that Sims’ lawsuit against the estate of the now-deceased officer who had led the sexting investigation, David Abbott, could move forward. ‘We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others,’ two of the 4th Circuit judges wrote. ‘Sexually invasive searches require that the search bear some discernible relationship with safety concerns, suspected hidden contraband, or evidentiary need.
The case has not quite come to an end. Sims–and presumably his penis–served a year of probation as a juvenile, and the civil suit was remanded to the lower court for resolution. However there are several worthwhile lessons, the seriousness of which eclipse the light-hearted tone I employed in writing about the case to date.
The child pornography law involved was well intentioned, but so broadly written as to criminalize consensual sexual flirting and contact among teenagers. Sexting, and the ease with which explicit images are sent via smart phone and the Internet in general, were not known, and obviously not considered, when the law was written. As I previously noted, the law carves out no exception for police officers, so their possession of the photographs of a teenager’s penis, or any other similar body part, for evidentiary purposes would be criminal. Officers, as Abbott tried to do, producing photographs to be used in a prosecution, would also be committing crimes.
Legislators, when laws are used for purposes for which they were never intended, often claim they never imagined the law would be used for those purposes. They are often, however, reluctant to change those laws to prevent misuse, probably because they don’t want to admit their sloppiness, or they really did intend the laws to be used in that manner.
This tragic situation points out the absolute necessity, not only for the exercise of great care in the writing of law, but for great care in ensuring no law, no matter how politically popular, violates the Constitution. It also illustrates the necessity of employing intelligent, diligent police officers well informed on the law, and willing to avoid violating the Constitution, and common sense, even when legislators will not. And where were Abbott’s supervisors when he was trying to photograph and inject a 17-year old’s penis? They could have ended the insanity then and there, and perhaps Abbott would still be alive, and Sims, his then girlfriend, and their families would have avoided a great deal of trouble. On the other hand, we don’t know Abbott was guilty of the charges that would have been prosecuted against him, but if he were, it’s possible pulling him off this case would have allowed him to victimize additional children.
Life—and law–is complex. We get the government–and police–we deserve.