Wednesday, October 8, 2014

Upcoming October 21st VSCC Meeting: Teen to Teen Sexting in Virginia Can Lead to Charges, Convictions, Imprisonment and Registration as a Sex Offender Under Current Child Pornography Laws, It’s Time to Change That!

The Virginia State Crime Commission will be holding their second meeting for 2014 on Tuesday October 21st. On the draft agenda is “Sexting”. An issue the VSCC last studied back in 2009 and then they decided not to address the current child pornography statutes that sweep up teens who “Sext” each other. 

There were no bills (legislation) from the 2014 Virginia General Assembly on Sexting that were sent to the VSCC to be studied in 2014 so I’m guessing the outlandish chain-of-events earlier this year in Manassas Virginia that was only stopped because of the national media attention and public outcry against the Commonwealth Attorney, Assistant Commonwealth Attorney, the magistrate and the investigator is the reason the VSCC has added Sexting to it’s 2014 study list. 

For anyone who missed the Manassas case where those in authority forced a minor to have his flaccid penis photographed for comparison to the “Sexted” images and when that wasn't good enough they obtained a warrant that would have forced the 17 year old boy to submit to an erectile enlargement injection to then have his erect penis photographed by the authorities as additional evidence you can read the past posts from beginning to end:
·         July 4th 
·         July 9, 2014
·         July 11, 2014  (My favorite article!)
·         July 17, 2014
·         July 25, 2014
·         July, 31, 2014
·         August 2, 2014 

Teenagers who send or exchange sexual or nude photos and/or videos with other teens do not pose a threat to society! The Child Pornography laws were NEVER intended to include them but yet we have Prosecutors and Police Departments in Virginia that think they should be treated as child pornographers including the mandatory minimum prison sentences and lifetime registration as a public "Violent" Sex Offender.

One-size does NOT fit ALL!

It’s time for Virginia to take the much need step to separate Teen Sexting from Child Pornography! 

For the last two days I have been doing a lot of research on what has been published and concluded about Sexting since 2009 when I last asked the VSCC to separate the two in the Virginia Code. 

In my digging I have concluded that almost ALL of the cases in Virginia that were picked up by the media did not result in significant charges, any imprisonment or registration as a Sex Offender........after the parents, guardians and teenagers spent thousands of dollars hiring an attorney, missing work and school for court dates while charges are filed and investigations are done. Plus being judged in the court of public opinion as someone who takes, sends and possesses nude images of teens or the parent of a child that does. But it seems media attention does affect the outcome, for the better.
I will be attending the October 21st meeting and if significant changes are not being seriously considered by the Commission I will once again urge them not to allow the status quo of allowing Commonwealth Attorneys to decide to charge or not charge a teenager who produces or sends a “Sext” or a teenager who asks for, possesses or forwards on a “Sext”. This should include 18 and 19 years old boyfriends and girlfriends who are in an established relationship with an age-appropriate partner. Especially if the image was produced or received BEFORE the older participant was 18 years old but yet was not discovered until after they turned 18 or 19 years old.  

If NO force, threats, intimidation or extortion has occurred to obtain the image or after producing, disseminating or possessing the image, then NO crime has occurred. 

If the image was NOT posted on-line by anyone who received/possessed it, then NO crime has occurred. 

Hopefully I will not need to speak during the meeting and the Commission will take the correct steps to rectify this issue with legislation in January of 2015. 

Below you will find links to information, papers, articles and studies on Sexting, including the 2009 Virginia State Crime Commissions Sexting study for anyone who wasn’t following these issues back then. 

Mary Devoy

Sextual Healing: Solving the Teen to Teen Sexting Problem in Virginia
Samuel T. Bernier, University of Richmond - Fall 2010
Under Virginia’s 2010 Child Pornography Criminal Code:
  • Convicted (only one count) of use of communication system to solicit and procure one nude image is a Class 6 Felony (first violation) punishable by one to five years in prison and requires registering as a Sex Offender for a minimum of for fifteen years.
  • Convicted (only one count) of possession of one nude image is a Class 6 Felony (first violation) punishable by one to five years in prison and requires registering as a Sex Offender for a minimum of for fifteen years.
  • Convicted (only one count) of distribution of one nude image (of yourself or someone else) the first violation is punishable by five to twenty years in prison, for every subsequent copy distributed may be punished by imprisonment for five to twenty years with a mandatory minimum sentence of five years and requires registering as a Sex Offender for a minimum of twenty-five years.
  • Convicted (only one count) of production of one nude image (of yourself or someone else) is punishable by five to thirty years in prison requires registering as a Sex Offender for a lifetime with no opportunity for removal.
Per the discretion of the Commonwealth’s Attorney prosecuting the case:
  • If 14 years or older and tried as adults in circuit court all charges, sentences and mandate to register above would go into effect.
  • If 14 years or older and tried as juveniles in Juvenile and Domestic Relations Court (JDR Court) alternatives to the criminal statues imprisonment and registration could be reached.
  • The Code of Virginia requires that any person convicted of certain enumerated offenses, including juveniles tried in circuit courts, whether sentenced as an adult or juvenile register as a Sex offender. Among those enumerated offenses are production and/or distribution and possession of child pornography and the use of a communications system to solicit a minor.

Virginia Office of the Attorney General- “Sexting” Presentation
CP Offenses = Sex Offender Registration

The Perverse Logic of Teen Sexting: Prosecutions (and How to Stop It)
Xiyin Tang 2013

Virginia State Crime Commission Sexting 2009
Presentation-   10-25-14: The  RSOL-VA Website is no more, I decided not to renew (pay for) another year of web-hosting I'm sorry!-Mary

Articles on 2009 VSCC Study-
Crime Commission Refuses 'Sexting' Recommendation, December 15, 2009:

Crime Commission Addresses 'Sexting', September 17, 2009:

Legislators look into how Va. laws cover 'sexting'

More on Teen Sexting………. 

Longitudinal Association Between Teen Sexting and Sexual Behavior by Jeff R. Temple and HyeJeong Choi, October 2014

Sexting and Sexual Behavior Among Middle School Students by Eric Rice, Jeremy Gibbs, Hailey Winetrobe, Harmony Rhoades, Aaron Plant, Jorge Montoya and  Timothy Kordic, July 2014

Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences by Heidi Strohmaier,  Megan Murphy and  David DeMatteo, June 2014

Sexting and Freedom of Expression: A Comparative Approach by JoAnne Sweeny May 2014

Sexting and Sexual Behavior in At-Risk Adolescents by Christopher D. Houck, David Barker, Christie Rizzo, Evan Hancock, Alicia Norton, and Larry K. Brown, January 2014

Freud on the Court: Reinterpreting Sexting and Child Pornography Law Matthew H. Birkhold, April 2013

Prevalence and Patterns of Sexting Among Ethnic Minority Urban High School Students by Melissa Fleschler Peskin, Christine M. Markham, Robert C. Addy, Ross Shegog, Melanie Thiel, and Susan R. Tortolero, January 2013

Sexting Among Young Adults, by Deborah Gordon-Messer, Jose Arturo Bauermeister, Alison Grodzinski and Marc Zimmerman, July 2012

Sending Sexually Explicit Photos by Cell Phone – More Common Among Teens Than You Might Think by Donald Strassberg, June 2012

Sexting: A Typology by Janis Wolak & David Finkelhor, March 2011

Sexting or Self-Produced Child Pornography? The Dialogue Continues – Structured Prosecutorial Discretion within a Multidisciplinary Response by Mary Leary, Spring 2010

Prosecuting the Victim: The Legal Impact of the Sexting Trend by Joseph Holaska, April 2010

'Sexting' and the First Amendment by John A. Humbach, 2010

Teens and Sexting by Pew Research Center December 2009

Virginia Department of Education: Division of Technology and Career Education – Sexting Implications for Schools, October 2009