What a great piece (see below), unfortunately inspired by the
Mr. Balko was one of the many speakers at the Center for Prosecutorial Integrity’s Summit that I attended inIn 2009 the Virginia Crime Commission voted against legislation separating Teen Sexting from Child Pornography on the claim that our Commonwealth Attorney’s use proper discretion in these types of cases and uniformity.
last month. As did two Virginia
Commonwealth Attorney’s and a Virginia Attorney General contact that I chatted
with. Too bad C.A. Paul Ebert didn’t attend the Washington, D.C. . Summit
As the 2009 article (above link) reminds us. Delegate Albo said, taking the discretion away from the state's 120 elected prosecutors could result in a teen being punished for a stupid mistake while allowing a serious predator to receive a mere slap on the wrist. Mr. Albo called possible legislation a total minefield. We are dancing on very, very scary territory here if you're talking about changing the law, he said.
I beg to differ.
The current situation of a 17 year old male in Manassas who is being charged and facing a lifetime on the Virginia Registry for reciprocating with a sexual image when a 15 year old female initiated the sexting and she is not facing any charges, plus the despicable warrant (that will now be allowed to expire) that would have forced the 17 year to become sexually erected and then submit to photographs. THAT is “scary territory”.Unnecessary damage is already occurring in the Commonwealth because there are prosecutors who are over zealous and lack common sense in these cases.
It’s time for
"It is better that ten guilty persons escape than that one innocent suffer"
-William BlackstoneMary Devoy
We Must Destroy the Children in Order to Save Them
By Radley Balko July 11, 2014
My colleague Tom Jackman’s story about the efforts of officials in
Northern Virginia to forcibly
induce an erection in a teenage boy in order to pursue “sexting” charges
against him has deservedly provoked national outrage. As Jackman points out, police have
since backed down and now say that they won’t execute the warrant. Of
course, there remains the problem of why the warrant was issued in the first
place. No one in the Manassas Police Department, the office of
Commonwealth’s Attorney Paul Ebert or the judge who signed off on the warrant
was able to see what the rest of the country saw, here: an outrageous abuse of
power and an unfathomable violation of this kid’s privacy. The Manassas was prepared to create
child porn in order to prosecute a 17-year-old kid for sending videos of
himself to his then-girlfriend, who was 15 years old. Commonwealth of Virginia
There’s a lot going on in this case. We can start with Paul Ebert, a dinosaur of the
justice system. I wrote a bit about Ebert’s history in a
previous post here at The Watch about prosecutorial misconduct. The general
takeaway is that Ebert, who has been in office for more than 40 years, has
a long and sordid history of poor judgment yet has never been sanctioned or
disciplined for his conduct. In 2011, his office was the subject of a blistering opinion
by the U.S. Court of Appeals for the 4th Circuit. As Andrew Cohen points
out in the linked article, it wasn’t the first time that has happened. Virginia
But the most pressing concern here is why this kid was pursued with such vigor in the first place. The very notion that the state of
would need to sexually exploit a
minor in order to protect minors from sexual exploitation serves as a tidy
microcosm of the “sexting” debate in general: Too many schools,
police, judges and prosecutors have concluded that we must destroy these kids
in order to save them. Virginia
Hormonal teenagers have been showing their bodies to one another since there have been teenagers and hormones. Sexting adds a third element to the mix: technology. Teens, sex and technology. Any two of those can spark a media frenzy and reactionary public policy. Mix all three, and you’ve got a recipe for full-blown moral panic. For a great example of how this can affect a kid, see Nancy Rommelman’s terrific 2009 piece for Reason magazine, “Anatomy of a Child Pornographer,” which took an in-depth look at one such case in upstate
. New York
Perhaps the best example of the absurdity of this approach is a 2007 case in Florida, in which a 16-year-old girl and a 17-year-old boy were convicted of “directing or promoting a photograph featuring the sexual conduct of a child” and possession of child pornography for e-mailing explicit photos to one another. The two hadn’t broken the law by having sex, only by creating, sending and possessing photos of their sex. In upholding the convictions, aIn a 2009 case, the Iowa Supreme Court upheld the conviction of an 18-year-old man who had sent a photo of his penis to a 14-year-old girl, who had requested it. Both parties said the entire episode was a joke, and there was no evidence presented that the photo had traumatized the girl. The man clearly showed poor judgment, but his conviction came with the requirement that he register as a sex offender. You can see the motives at work behind these cases in a statement Pat Trueman, an attorney for a religious advocacy group, gave to a local TV station after the verdict:
appellate court judge wrote, “Mere
production of these videos or pictures may . . . result in psychological trauma
to the teenagers involved. Further, if these pictures are ultimately released,
future damage may be done to these minors’ careers or personal lives.” The
state of Florida
had to protect these two minors from the theoretical damage to their lives
or careers that might have been done had the photos been released by turning
them into convicted child pornographers. Florida
“This was a serious offense. He was producing obscenity and distributing obscenity, and to a minor at that. . . . But he also has to register as a sex offender — and [he] may be on that sex offender registry for a lifetime. So if anyone had any doubts, sexting is a very serious crime — and kids better get to know that.”
Note that Trueman defines the seriousness of the crime not by the amount of harm inflicted on victims or the damage the act itself does to society but on the seriousness of the punishment that lawmakers have attached to it. We should know by now that when drawing up crime legislation, lawmakers aren’t always engaging in a careful consideration of costs, benefits and the proper role of punishment in a criminal justice system. They’re often driven by outrage, media frenzies and a flare-up of we have to do something syndrome. (See also: laws named after dead people.)
The argument in favor of saving children from sexting is that the photos could wind up in the hands of a sexual predator.
Perhaps that has happened, but I’ve followed this issue for several years, and I don’t recall a single such incident, much less a trend of them. I don’t think anyone would argue that it’s a good idea for minors to send explicit photos of themselves to one another. But there’s simply no evidence that the harm they’re imposing upon themselves by doing so justifies treating them as criminals.
In 2010, the U.S. Court of Appeals for the 3rd Circuit returned some sanity to the discussion by blocking a
prosecutor from using the
threat of felony charges to force three girls to attend a six-month
“educational program” about teenagers and sex. In this case, the girls weren’t
even nude. The court sensibly found that the prosecutor was infringing on
the parents’ right to oversee the upbringing of their own children. (Leaving
this issue to parents to handle — imagine that!) In a rare bit of political
comeuppance for prosecutorial overreach, local outrage over the case cost District Attorney George Skumanick Jr.
There are other issues at work here, too. In an effort to register their contempt for child exploitation and sex crimes, lawmakers have defined sex offenses so broadly that a teen sending an explicit photo to a boyfriend or girlfriend can qualify. Typically, when critics point out that a new law could be used in ways lawmakers never intended, supporters point to prosecutorial discretion. They argue that it’s ridiculous, even insulting, to suggest that a prosecutor would twist a law to bring charges against someone in ways the law clearly never intended — or that a judge would allow it. That police, a prosecutor’s office and a judge all saw nothing wrong with forcibly inducing an erection in order to pursue charges against a 17-year-old kid puts the lie to that argument.
Sex isn’t the only context in which we’re ruining kids under the pretense of saving them. We’re protecting kids from drugs by arresting and jailing them for marijuana possession. We’re protecting them from the (mostly nonexistent) problem of school violence by assigning law enforcement to patrol middle and high school campuses. The presence of law enforcement means that kids who were once reprimanded, assigned detention or possibly suspended for infractions such as fighting, throwing food or truancy are now fed into the criminal justice system.
And that’s the final lesson here. These stories are all symptoms of our increasing tendency to use the criminal justice system to “fix” the sorts of problems once addressed by families, schools, religious organizations and other civic institutions.
Perhaps the best thing we can do to help kids right now is to stop the people who are trying to save them.