Does Virginia Sexting Case Go Too Far?

July 14, 2014

Recently, the Washington, D.C. metro area suburb of Manassas City, Virginia became the focus of a national media frenzy and for some fairly dubious reasons.

For non-Northern Virginia residents, Manassas City is an independent municipality that exists within Prince William County, and that should not be confused with nearby Manassas Park.  Serious crimes within the borders of Manassas City are typically prosecuted by the Office of the Commonwealth Attorney for Prince William County.

Last week’s media frenzy was sparked when allegations surfaced about a search warrant that had been requested — and allegedly was issued — to take photographs of a 17-year-old’s penis. The photo was to be taken without the minor’s consent in order to compare it with a photograph in police custody in connection with a sexting investigation involving the 17-year-old and his teenage girlfriend. The kicker was that police did not want a photo that was in the 17-year-old minor defendant’s possession, they wanted to take a staged a photo of his erect penis. The pursuit of the warrant allegedly included taking the initial steps to determine what medical procedures could be employed to make that happen.

Many of my colleagues in Virginia and across the country have weighed in on the constitutional privacy rights at issue here, including the sexual privacy rights. However, my first thought was one of potential criminal exposure for law enforcement officials pursuing the warrant.  Though Virginia Code Section 18.2-374.1:1(H) provides an exception to possession and distribution of child pornography for law enforcement officials who are engaged in a “bona fide” purpose, it could be argued that a bona fide purpose would not apply to the creation of a sexually explicit image merely for the purpose of comparing it to another sexually explicit image.  There are certainly better evidentiary methods to pursue, not to mention the level of care and sensitivity that would be required when handling, and ultimately destroying, such dangerous material.

My initial thought pushed me further down the twisty road of “what ifs” and hypotheticals, with all of the questions leading to a similar conclusion.  If I hear about this case in brief and think, “Wow, they are creating and distributing child pornography with only a colorable bona fide purpose,” and other people are saying, “Wow, they are invading the corpus of a minor,” and “Where are the parents,” then the next logical question is, “Where is the prosecutorial discretion and what is the role of the magistrate or judge in reviewing and issuing search warrants?”  To pursue such a warrant would not have been done without careful deliberation. Further, a search warrant has to be approved by an independent body viewing the facts alleged in the accompanying affidavit.

It appears, at least as of the date this blog was written, that this matter has been solved by the negative attention it garnered as authorities announced last Friday that the search warrant will not be served.  At what level that decision was made – whether it was administratively within the police department, the Office of the Commonwealth Attorney, or the local judiciary — remains to be seen. But as a local attorney, I am pleased that this question of “how far should the law go” has been posed to the public at large for comment.  The lead Washington Post article on the subject has nearly 1,200 comments; some enlightening, some comic, some strange. To read a few is to regain a sense of the community and how it views the judicial system.  I am part of that system on a daily basis, fighting for those charged with criminal offenses or under criminal investigation. Often times, it helps to take a step back and get in touch with what is truly important.  This case reminds me what is important, and it is not the prosecutor, the defense attorney, the detectives, or the judge.  It is about the kids and their parents.  It is about the need for those two families to deal with what appears to be a case of serious youthful indiscretion in a constructive manner rather than turning it into a criminal manner, with potentially devastating consequences that reach far beyond the intent of two teenagers exchanging inappropriate texts.