Saturday, January 18, 2014

Action Alert: HB1260 Will Make Teen “Sexting” a Misdemeanor Instead of a Possible Felony in Virginia

HB1260 is a great bill!  

§ 18.2-374.2:1. Electronic transmission of sexually explicit images between minors; penalty.  

A. Any minor who knowingly transmits, distributes, publishes, or disseminates to another minor an electronically transmitted communication containing a sexually explicit image of their own person is guilty of a Class 2 misdemeanor.  

B. Any minor who knowingly possesses at least one but not more than ten electronically transmitted communications containing a sexually explicit image of another minor is guilty of a Class 2 misdemeanor.  

C. Any minor who violates the provisions of subsections A or B shall be ordered to participate in such programs, cooperate in such treatment or be subject to such conditions and limitations as the court may order and as are designed for the rehabilitation of the child and to perform a mandatory minimum of hours of community service. Such conditions and limitation may include the completion a community-based program that addresses the consequences of transmitting, distributing, publishing, or disseminating sexually explicit images via an electronically transmitted communication and the restricted use of the Internet or computer, including an electronic communication device as defined in §18.2-190.1 

D. Whenever any minor who has not previously been convicted of an offense under subsection A, or B of this section pleads guilty to or enters a plea of not guilty to a violation of subsection A or B of this section, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused and the attorney for the Commonwealth, may defer further proceedings and place him on probation upon terms and conditions for a period not exceeding one year. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.  

E. Venue for prosecution under this section may lie in the jurisdiction where the unlawful act occurs or where any sexually explicit image of a minor associated with a violation of this section is produced, reproduced, found, stored, or possessed.  

That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000.  

Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice. 

Today in Virginia teenagers who are minors if they “sext” they could face felony child pornography charges.

With varying mandatory minimum sentences all depending on if they created/produced the image(s), if they distributed/disseminated them or if they received/ possess them. 

In 2009 I asked the Virginia Crime Commission to propose legislation to protect teenagers who are not part of the child pornography industry and since then only one bill has been proposed in 2010 and it failed. 

HB1260 would make the current possibility of years in prison for age appropriate relationships to now be a misdemeanor with some community service and attending a program on the dangers of “sexting”.  

My only concerns are:
  1. HB1260 does not state “create” or “produce” anywhere so I’m not sure if the teen who takes the images could still face felony charges. If that is in fact the case, the word “produce” needs to be added.
  2. The 18 and 19 year old boyfriends and girlfriend who receive the “sext” from the minor would still face felony child pornography charges. Even if they received it when they were 17 years old and still have it on their phone today and their 18 or 19 years old. Something needs to be added to the bill to exclude age appropriate relationships from being caught up in the courts. An age gap allowance of 3 or 4 years so they would face a misdemeanor instead of a felony.
Please Email or call  your Virginia Delegate and Senator and tell them to vote “YES” on HB1260 AND to add the two amendments I believe are needed to make this bill a solid piece of legislation to avoid capturing teenagers who are not producing, distributing or receiving actual child pornography.
I hope 2014 will finally be the year to fix this true “loophole” that captures teenagers under Virginia’s child pornography statutes.

Thank you Delegate Scott A. Surovell !