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Tuesday, November 10, 2015

Action Item: Teen Sexters are Not Child Pornographers but Yet Virginia Law Doesn’t Differentiate - We Allow Our Prosecutors (Commonwealth Attorneys) to Make the Decision and That Is NOT Working!


This post contains an action item for Virginia AND an action item at the Federal Level, so please be sure to act on both! 

Anyone who pays attention to national news has heard about the Canon City Colorado “Sexting Scandal” over the last few days. 
 

- Opinion: Schools Can’t Stop Kids From Sexting. More Technology Can, November 10, 2015
- Colorado’s Sexting Nightmare, November 9, 2015
Colorado teenagers might face child pornography charges for sending each other nude photos.
- CNN Opinion: The truth about sexting laws, November 9, 2015
- Editorial: An extreme law for youth sexting, November 9, 2015
Canon City sexting scandal should not be allowed to ruin lives
- ‘Sexting’ Case Rocks Colorado Town, November 8, 2015
Investigation highlights the challenge facing schools and prosecutors nationwide as teens share nude images by smartphone
- Sexting case raises questions about prosecution, November 8, 2015
Prosecutors look for new options in sexting crimes
- 'Ghost app' used by students in sexting investigation, November 7, 2015
      http://www.9news.com/story/news/crime/2015/11/06/ghost-app-used-by-students-in-sexting-investigation/75322410/
- Sorting sexting offenders from victims will take time, November 7, 2015
- District officials in Cañon City say they've discovered hundreds of nude photos, November 6, 2015
- Sexting 'Contest' Scandal Sweeps High School, November 6, 2015
- Colorado high school football team forfeits final game over sexting scandal, November 6, 2015

And just two months ago a case in North Carolina made the news where the male participants’ name and photograph was all over the news but the female’s was not. Their cases were settled in court separately with plea deals to misdemeanor offenses where they must abide by rules of probation for a year and if they mess up and violate probation then the convictions will remain and NOT be wiped off their records.

- North Carolina sexting case highlights quandary over child pornography laws used to prosecute teens, September 24, 2015
- Sexting teens banned from using their phones for a year, September 21, 2015
- Teen prosecuted as adult for having naked images – of himself – on phone, September 20, 2015
North Carolina high schooler and his girlfriend face legal proceedings over selfies as both the adult perpetrators and minor victims
- Lawmaker: Child porn law misused against sexting teens, but tools needed to fight predators, September 12, 2015
- Teens Who Take Nude Photos Of Themselves Can Still Be Treated As Sex Offenders, September 9, 2015
In many states, they don't have to share the photo to break the law.
- Unequal Justice: Two 16 Year Olds Consensually Share Sexual Images of Themselves With Each Other, Now 17 Years Old The Female is Given One Year of Probation and the Male is Facing 10 Years in Prison and a Lifetime on the Public Sex Offender Registry
- The Moral Panic Over Sexting, September 2, 2015
Laws meant to protect young people from sexual predators are instead being used to charge them as felons and put them on sex-offender registries for life.
- Teen Boy Will Be Charged As Adult For Having Naked Pics of a Minor: Himself, September 2, 2015
Kafka-esque sexting nightmare
- These Teens Kept Their Sexting Private, But Cops Found Out. Now They Face Sex Offender Registry, Jail, September 1, 2015
Is it possible for two teens to sexually exploit each other?

Virginia has had its issues too. 

There was the horrible abuse of power by a Virginia Prosecutor in Manassas/ Prince William County back in July 2014, where he wanted to create child pornography by forcing the male teen to take erectile dysfunction medication to then be subjected to being photographed. If that teenagers Aunt had not reached out to the media for the public to cry fowl, who knows what type of felony conviction/plea deal he would have had to live with for the rest of his life.

- Teen Sexting: An In-Depth Look at the Trend, November 25, 2014
- Manassas City detective in teen ‘sexting’ case sues teen’s lawyer for defamation, November 13, 2014
- Manassas City teen placed on probation in ‘sexting’ case where police sought photos, August 1, 2014
- 'Sexting' Teen Given One Year Probation; No Declaration of Guilt or Innocence , August 1, 2014
- Manassas case rekindles debate over penalties for ‘sexting’, July 25, 2014
- P.Wm. prosecutors say they won’t use, seek explicit photos in Manassas City ‘sexting’ case, July 15, 2014
- We Must Destroy the Children in Order to Save Them, July 11, 2014
- In ‘sexting case’ Manassas City police want to photograph teen in sexually explicit manner, lawyers say, July 9, 2014
- Va. Teen Could be Jailed for "Sexting" Girlfriend, July 3, 2014
 

Don’t forget the Amelia County case:
-Cops reportedly bust sexting ring involving 100 teens in Virginia, April 7, 2014
-Why Kids Sext
An inquiry into one recent scandal reveals how kids think about sexting—and what parents and police should do about it.

And this case in Chesterfield:
-Chesterfield youth could face child porn charges for ‘sexting’, March 14, 2014

And this case in James City County:
- Virginia Teen Girl Accused Of Posting Nude Selfies, Arrested For Child Porn, February 2, 2014

And this case in McLean:
- Virginia teens plead guilty to creating cache of nude photos of students, November 10, 2014

…and this case in Fairfax:
- Teen ‘sexting’ case goes to trial in Fairfax County, April 17, 2013

There are many, many more examples of young lives being threatened with felonies, incarceration, lengthy probation and life on the Virginia State Police Sex Offender as a Violent Offender over the last 10 years. 

In the Summer & Autumn of 2009 the Virginia State Crime Commission met to study Teen Sexting and charging them under Virginia Child Pornography Statutes, no recommendations were made by the Commission 

- Crime Panel Refuses to Call for Measure to Curb Sexting, December 16, 2009:   

In the Summer & Autumn of 2014 the Virginia State Crime Commission met to study Teen Sexting and charging them under Virginia Child Pornography Statutes, no recommendations were made by the Commission 

- Va. crime panel backs cigarette retailer licensing, December 2, 2014
- Virginia revisits penalties for teen Sexting, October 27, 2014

So how many teens are being arrested for “Sexting” in Virginia? 

Well there is no way to know how many 18 or 19 year olds with younger partners and friends are being swept-up as “Pedophiles” because they’d be charged as adults and prosecuted to the full extent of the child pornography laws in the Commonwealth. Sadly they are collateral damage that no Virginia Legislator has been willing to acknowledge. But we can track how many juveniles are arrested for “Pornography” in Virginia and the majority of those (if not all) would be for “Sexting” 

Virginia Juvenile Arrests for Pornography
 
Under 10 years old 
10-12 years old   
13-14 years old    
15 years old    
16 years old    
17 years old    
Total
2001
0
0
1
0
0
1
2
2002
0
0
1
2
2
0
5
2003
0
0
3
0
0
1
4
2004
0
0
4
3
2
2
11
2005
0
0
0
0
1
1
2
2006
0
0
0
1
1
0
2
2007
0
1
1
1
0
1
4
2008
0
0
3
6
3
1
13
2009
0
2
16
1
4
1
24
2010
0
3
12
12
4
7
38
2011
0
3
19
5
6
10
43
2012
0
2
7
2
11
6
28
2013
0
1
13
7
6
10
37
2014
0
7
22
14
15
15
76
 
 
 
 
 
 
 
 
* Data comes from the VSP Annual Virginia Crime Reports
 
 
 
 

 
The total number of minors in Virginia being arrested for pornography has increased expeditiously and the 10-12 year old range hasn’t been zero since 2009.  

It’s time for Virginia to separate Teen-to-Teen Sexting from Child Pornography Production, Distribution and Possession in our statutes. Depending on the police, investigators and Prosecutors (Commonwealth’s Attorney’s) to make the correct call in these situations is NOT working. 

We also can not forget the 18 and 19 year olds who are in age-appropriate relationships with 16 and 17 year olds who do not force, threaten, intimidate or extort the younger participant. They are no threat to society and prosecuting them as Child-Pornographers felony OR misdemeanor serves no positive purpose. 

The teens in these Sexting situations are NOT unknown, nameless children being abused by an adult for their sexual gratification or profit. These are not children who are being abused; who need to be rescued and to try and claim we can not successfully separate the two within our Code of Law because abusers won’t be properly punished is absurd. 

In this article Crime Panel Refuses to Call for Measure to Curb Sexting, December 16, 2009 http://www.washingtontimes.com/news/2009/dec/16/crime-panel-refuses-to-call-for-measure-to-curb-se/print/
Virginia Delegate Dave 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”.  

Virginia code has an “age gap allowance” in our Carnal Knowledge statute; this allows for age-appropriate relationships and prevents overzealous Prosecutors from filing charges, threatening incarceration and watering down our already bloated VSP Sex Offender Registry. 

Virginia could easily add a “4-year age gap” to the following statutes:
  • Child Pornography Production
  • Child Pornography Distribution
  • Child Pornography Possession
  • Child Pornography Solicitation 
By doing this no teenagers (including 18 and 19 year olds) who willing participate in creating and or sharing images of themselves could be arbitrarily prosecuted.  

While still allowing prosecutions for:
  1. Anyone who uses threats, intimidation or force to acquire the image
  2. Anyone who takes the image without the other person knowledge
  3. Anyone who attempts to extort the person in the image
  4. Anyone who profits from the image
  5. Anyone who steals (hacks into a phone or computer) an image without permission
  6. Anyone who publicly posts images as a form of revenge to embarrass or harass the person in the image
  7. Anyone who “grooms” the person in the image
  8. Anyone 4 years and one day older than the person in the image
Arbitrary investigations and criminal prosecutions waste State resources, they destroy reputations, result in expulsion for school, termination from employment and eviction from housing all for a situation where no one was harmed, where no threat  ever existed.

Teen Sexting while foolish and a moral conundrum no one was violated or victimized and criminal prosecution is NOT the appropriate response. 

It’s time for Virginia to amend its Child Pornography statutes by adding a 4-year Age Gap  so no more teenagers who consensually “Sext” face prosecution. 

Action Item #1:
  1. Ask Virginia Governor McAuliffe https://governor.virginia.gov/constituent-services/communicating-with-the-governors-office/ to find a sponsor and/or support legislation at the January 2016 General Assembly session to add a 4-year Age Gap to the 4 sections of our Child Pornography statutes.
  2. Tell your one Virginia Delegate and your one Virginia Senator http://whosmy.virginiageneralassembly.gov/ to sponsor legislation at the January 2016 General Assembly session to add a 4-year Age Gap to the 4 sections of our Child Pornography statutes.
Action Item #2: 

From Lenore over at Free Range Kids to stop the madness from spreading even further than it does today at a Federal level. 

Teen Sexters are Not Child Pornographers

You’ve probably heard of this incident by now: 100 or possibly even more teens and pre-teens busted for sexting in Colorado. This is hardly an isolated incident. Teens. Phones. Cameras. As if we couldn’t all guess what would happen.

The only ones who don’t seem to get it, yet, are the approximately 30 states where the legislators have still not amended the laws to recognize sexting is not child porn. The plea for more rationality AND compassion, below, comes to us from Diana Green, a social justice advocate in Brighton, NY, especially concerned about  barriers to employment. – Lenore 

DON’T TREAT SEXTING AS CHILD PORN
by Diana Green  

Last  week, more than 100 Canon City, Colorado, high school and middle school students, some as young as 12, were implicated in a “sexting’” scandal for taking and sending nude photos of themselves and schoolmates. 

That’s about 10% of the entire population of the high school. 

Possession and transmission of nude photos of children under 18 is child pornography, a criminal offense. Most of the students are minors, and hopefully will be classified only as “victims,” not perps. But the few over 18 may face charges. As District Attorney Tom LeDoux told reporters, “We will review each case on an individual basis. It is possible that students will have to register as sex offenders.” 

Note that a kid one day under 18 may incur no penalties.  A kid one day over 18 has his life ruined, facing possible prison time, and/or years on the dreaded registry. 

The problem is this: The sex offender laws in this country were designed circa 1995, during a period of national paranoia about child abduction and serial killers. They were bad laws then, but they are worse now, because they have not kept up with technology and social norms. Of course we don’t want our kids sexting. But if 10% of kids at least at one school are doing it, should we be criminalizing what appears to be just plain dumb adolescent behavior? Criminalizing it this harshly? Rather than keeping our kids safe, this “For the safety of the children!” law has ensnared them. 

And it is about to get even worse. 

The United States Sentencing Commission is currently preparing new sentencing standards that will classify possession and transmission of photos of naked kids as a “crime of violence.” If this passes, sexts will be evidence of a violent crime. It’s possible that even the 12 year olds in a case like this could then be charged with felony offenses. 

Let’s not allow our sex offender laws to get even more draconian. Protest this change. Write to: 

The US Sentencing Commission
Public Affairs
One Columbus Circle N.E. Suite 2-500
Washington D.C. 20002-8002 

The kid you save may be your own.

 

Thank you!

Mary Davye Devoy