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Tuesday, October 21, 2014

October 21, 2014 VSCC Meeting: Proposals for Consensual Teen Sexting in Virginia and the Many Concerns the Proposals Have Raised

 
The Virginia State Crime Commission held its second meeting for 2014 today, agenda . 

Presentations:
  1. Status of Special Conservators of the Peace
  2. Private Police Departments
  3. Digital Impersonation and Harassment (HB 344 and HB 707)
  4. Update on Sexting
  5. Northern Virginia Human Trafficking Task Force Case Examples
  6. Human Trafficking and Juvenile Prostitution (SB 373 and HB 486)
  7. Update on Law Enforcement Lineups
The first 15 slides of the Sexting Presentation is a look back on what Virginia has and hasn’t done in past years to address Teen Sexting. 

On slide #16 we learn that a group I had never heard of The Virginia Criminal Justice Conference- VCJC (which was created in 2006 to be the criminal justice system equivalent of the Boyd-Graves Conference) has been discussing Teen Sexting for 3 years now.  

The VCJC is made up of a roughly equal balance of prosecutors and defense attorneys, and also includes jurists from each level of Virginia’s courts, legal scholars, and representatives from the General Assembly. Its goal is to improve criminal justice in Virginia, and make proposals for improvement, but only if substantial consensus is reached amongst the members. Its annual conference is hosted by The Virginia Trial Lawyers Association- VTLA; there is no website for the VCJC to know who the members are, what they are meeting about or when they've met. On the VTLA website there is a VCJC page that reads “coming soon”. 

The most recent VCJC Sexting Subcommittee decided that Sexting legislation in Virginia:
  • Should not completely decriminalize any sexting behavior, as even taking a lewd photo of oneself, as a minor, creates an
  • unquestionable risk of harm;
  • Should recognize that qualitatively, some sexting behaviors are less culpable than the conduct that is the primary focus of the child pornography statutes, and are therefore deserving of a lessened penalty;
  • Should fit within the existing child pornography statutes;
  • Should be very limited in scope; and,
  • Should contain a “first offender” provision that would apply only to those limited sexting behaviors.
 
VCJC Recommendations:
  1. That taking a lewd photo of oneself, without anyone else in the picture, is the least culpable form of juvenile sexting, and is more appropriately punished by a Class 1 misdemeanor than the existing unclassified felonies of 1 to 20 years (if 15 or older), or 5 to 30 years (if younger than 15).
Ø      This would not apply to images that depict excretory functions, sadomasochistic abuse, or crimes against nature as defined in Va. Code § 18.2-361.
Ø      The language for this subsection should mirror the accommodation subsection of Virginia’s drug distribution statute—it is the burden of the defendant to show he meets the requirements.
  1. That in instances of consensual sexting, the simple possession of an image should only be a Class 1 misdemeanor, if:
Ø      Any child depicted is at least 13 years old;
Ø      The possessor is no more than 4 years older than every child depicted in the image;
Ø      The possession is with the knowing consent of every depicted child; and,
Ø      The image does not depict excretory functions, sadomasochistic abuse, or crimes against nature as defined in Va. Code § 18.2-361.
  1. The language for this subsection should also mirror the accommodation subsection of Virginia’s drug distribution statute. 
  2. That it should be a Class 1 misdemeanor if a child sends a sexting image of himself, provided that he is the only person depicted in the image, and all of the requirements for the Class 1 misdemeanor offense of producing a sexting image are met:
Ø      The image cannot depict excretory functions, sadomasochistic abuse, or crimes against nature as defined in Va. Code § 18.2-361.
Ø      The language for this subsection should mirror the accommodation subsection of Virginia’s drug distribution statute—it is the burden of the defendant to show he meets the requirements.
  1. That a first offender provision be created for sexting, mirroring the language used for Virginia’s first offender statute for drug possession.
  2. It would only apply to the three new Class 1 misdemeanor offenses, and would require:
Ø      Successful completion of a treatment or education program;
Ø      10 to 100 hours of community service; and,
Ø      Any other conditions the court deems appropriate.
  1. Upon completion of all terms and conditions, the charge would be dismissed; first offender status would not be available if future offenses were committed.
  2. All other sexting behaviors would not be covered by the proposed statutory changes, including:
Ø      Possession of a sexting image if the subject of the photo did not know the defendant had possession of the image, or did not give consent;
Ø      Production of a sexting image, if anyone else appears in the photo, even if the other person is clothed and not engaged in sexual behavior;
Ø      Transmission of a sexting image, if anyone else appears in the photo, even if the other person is clothed and not engaged in sexual behavior; and,
Ø      Requesting someone take or send a sexting image.
  1. These cases could still be handled by prosecutorial discretion, when appropriate.
VSCC staff added two additional proposals for the Commission members to consider:

  1. The Class 1 misdemeanor for possession of child pornography could be limited to cases where only a certain number of images were possessed; e.g., the defendant did not possess more than 10 images.
  2. The Class 1 misdemeanor for transmission of child pornography could be limited to cases where the images were sent to a particular individual; e.g., sending images to a public website, to more than a certain number of recipients, or to Twitter or Instagram accounts would not qualify for the reduced penalty.
At one point a Commission member asked if a 4 year age gap matched current age gap allowances in Virginia Code. I immediately knew the answer was no, our carnal knowledge of a minor statute has a 3 year age gap. When the VSCC staffer found the code he advised the member it was 3 year and the member suggested consistency but the staffer replied with a 4 year age gap that would cover freshman/senior relationships. The 4 year age gap also applies to 18, 19 and 20 year olds which is reasonable especially if they received the image when they were a minor but it wasn’t discovered for a few years and now they are adults and the “victim” might also now be an adult also. 

I find it interesting that a group of attorneys, scholars and lawmakers (VCJC) who meet in private can draft a proposal that might be accepted by the 2014 VSCC to then be proposed to the 2015 Legislature but past years proposals brought to the Virginia Legislature have been shot-down with little to no discussion. 

The first concern I have with today’s proposal is that it would only apply to 13 year olds and up. 

Per the last 5 years of Virginia Crime Reports that I posted here, we know that eleven 10-12 year olds have been arrested in Virginia for child pornography; today’s proposal would not include this group of juveniles leaving them to be arrested and charged for child pornography in the Commonwealth if their offense were actually "Sexting".  

Do we like 10-12 years olds Sexting? No!  

But is charging them with child pornography an appropriate response? No!  

They need to be included, not excluded in any legislation for Teen Sexting in Virginia. For this group, they could make the age gap allowance 2 years instead of the 4 years if that’s a concern for the State. 

My second concern is an image doesn’t qualify as Sexting if transmission of the image(s) “to more than a certain number of recipient; to a public website or to Twitter or Instagram accounts”. Even if the image was transmitted or posted by the teen in the image? In 2014 Virginia has already seen a Twitter case from James City County and the Louisa County case with 100 teens posting on Instagram. Today’s VSCC proposal is supposed to fix the current problems child pornography laws have created with teenagers who Sext and by excluding the sharing/posting of images by the taker of the image we aren’t fixing anything. 

My third concern is an image doesn’t qualify as Sexting if a “request has been made to take or send” a sexting image. All the studies on Sexting have concluded that Teen Sexting is the latest version of I’ll-Show-You-Mine-If-You-Show-Me-Yours, 7-Minutes-In-Heaven and getting to “First-Base” for teenagers in 2014. One minor soliciting a “Sext” from a classmate, teammate, neighbor or acquaintance who is also a minor is NOT the same as an adult soliciting a minor on-line and a distinction needs to be made between the two. 

My fourth concern is an image doesn’t qualify as Sexting “if it depicts excretory functions”. Let’s face it; teenagers don’t think things thoroughly through before acting. If a male thinks it’s funny to video himself urinating (maybe in the snow) or even masturbating is the State really going to charge him with a felony for making that video and/or sharing it as child pornography? We shouldn’t! 

My fifth concern is if the image(s) only depicts one person (the sender/taker) it qualifies as Sexting, BUT if there is more than one person “even if the other person is clothed and not engaged in sexual behavior” it would NOT be Sexting but instead child pornography.  

If 2 or 3 girls or 2 or 3 boys take a photo together, why wouldn’t that qualify as consensual teen sexting? Remember per presentation slide #7: 

  1. Under Virginia law, actual nudity is not required for the images to be child pornography.
  2. Under the relevant definitions provided by Va. Code § 18.2-390, “nudity” includes “a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple….”
  3. The nudity must involve a lewd exhibition; not all naked pictures of children qualify as child pornography.
If everyone in the image is fully participating and knowledgeable of the photograph or video being taken why wouldn’t this image qualify? If there is a series of photos shot at the same time by the same teens, an image of one teen would qualify as Sexting what makes the image of 2 or 3 teens together any different? The only answer I can surmise is Puritanism, prudishness and fear of our teenagers being sexual. One naked or sexualized teenager taking a photo must be a mistake and they shouldn’t be criminalized, but two or three being sexual together……. throw the book at them; it’s for their own good. But it’s not! 

My sixth concern is only first time offenders can fall under “Sexting”. We all know that the human brain does not fully develop until our mid to late 20’s. Teenagers do stupid and dangerous things because they don’t think out the consequences of their actions. Many times they don’t “learn a lesson” the first time around. Sometimes it takes 2-or-3 try’s to finally get it right and by only allowing for first time offenders to qualify under a Sexting statute the “knuckle-heads” of the Commonwealth are going to pay any extremely high-cost with a possible lifetime on the Virginia Registry and mandatory minimum prison sentences because they weren’t mature enough to understand the second chance they were given last time was really their last chance. 

That’s 6 major issues after only thinking about today’s presentation for 4.5 hours. I will probably come up with more, the longer I contemplate the consequences and application of the eleven points/proposals from todays presentation. 

I have shared my concerns with the VSCC members today and I will share with the rest of the Virginia Legislators in December or January (before session begins) if these issues have not been rectified. At that point I will post an action item for all of you to reach out to your Delegate and Senator, hopefully that won’t be necessary. 

Mary Devoy