Note: This column contains potentially upsetting discussion of teenagers and sexuality.
Many teenagers are sexually active.
Adults don’t generally care for this truth, but it is a fact of life. Exploring one’s sexuality as an adolescent is a part of growing up, and that exploration will often involve another teenager. We have laws in place to protect youths from situations in which they are exploited or to which they cannot meaningfully consent. Yet a 15-year-old having a sexual encounter with a 17-year-old is a situation that is very different from sexual activity between a 15-year-old and a mature adult. The laws in many states, including Virginia, recognize the difference.
In Virginia, those teens can have sex without breaking the law. It is, however, arguably illegal for them to take naked pictures of one another, due to child pornography laws. Is it illegal, though, for the teens to take pictures of themselves and send them to one another? According to prosecutors in Manassas City, yes.
In a recent case reported in The Washington Post, a 15-year-old girl sent pictures of herself, though their nature has not been discussed, to her 17-year-old boyfriend. The boy then allegedly sent her a sexually explicit video of himself in turn. People who, in the state, can legally consent to actual sex can apparently victimize themselves by recording such images and violate the law by privately sending an image of something the recipient can legally see in person. The girl has not been charged, but the boy faces two felony counts.
The sane response from law enforcement to the complaint made by the girl’s mother should have been obvious. The mother should take her daughter’s cellphone away and make clear that it is a bad idea to circulate pictures that she wouldn’t want the world to see. If the mother doesn’t like her daughter’s boyfriend, forbid her to go out with him. In short, a functional adult would tell the mother that she should be a parent to her daughter.
Instead, law enforcement officials served the teenage boy with felony charges for creating and distributing child pornography. They went to juvenile court, but the case was dismissed when prosecutors failed to properly establish that the defendant was a juvenile. Instead of dropping the charges, however, prosecutors filed them again.
According to The Post, defense lawyer Jessica Harbeson Foster said she was told by Assistant Commonwealth’s Attorney Claiborne Richardson II that her client must plead guilty or the police, who had allegedly already taken photos of the teen’s genitals against his will, would obtain another search warrant for comparison to the images on his phone. The search warrant would have supposedly entitled the police to obtain photos of the boy’s erect penis.
Pleading guilty would label the teen a sex offender, maybe for the rest of his life, for the fallout from a legal sexual relationship with a girl two years his junior. He refused. When Foster asked how the prosecutors would obtain photos of the boy’s erect genitalia for comparison without his cooperation, she said she was told that “we just take him down to the hospital, give him a shot and then take the pictures we need.” That is, prosecutors planned to arrange to take photos of a juvenile’s genitals against his will that were as similar as possible to the very images deemed criminal when the youth supposedly made them of himself in the first place.
At this point, it would be easier to look for the few people in this story who have not taken leave of their senses. One is the judge who refused to insist on executing the warrant before allowing the boy to leave Virginia to visit a relative. The second, one hopes, would be any licensed medical professional in the state. Despite the prosecutors’ threat, it is hard for me to picture any hospital permitting such a procedure, or any professional who wished to keep his or her license actually performing it.
On the long list of people involved who qualify as at least professionally incompetent, we can include the detective investigating the case, the assistant district attorney who sought the search warrant, and the judge who issued it, among the many others who allowed matters to get this far out of hand.
In response to The Post’s story, the Manassas City Police Department released a statement claiming, “It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case.” Given the national media attention the situation has drawn, I would be surprised if law enforcement didn’t back off under the scrutiny. But the fact that matters escalated to this point in the first place is simply crazy.
As Foster noted in the Post’s coverage, “The prosecutor’s job is to seek justice. What is just about this?”
Underage sex is often bad and sometimes harmful, which is why parents and other adults do not usually encourage it. But it is also a normal part of being a teenager. When we attempt to turn normal behavior into a crime, we get grossly abnormal results. The Justice Department and other law enforcement agencies have cautioned that teenagers sending naked or seminude images and video to one another should be taken seriously - but that overly aggressive prosecution can create more problems than it solves. The Virginia case is a perfect example of what can happen when this balance is lost.
A lot of punishment is deserved for this situation, but none of it for anyone underage. At most, the teenagers’ phones ought to be put away until they are mature enough to use them wisely. Any stronger consequences need to be reserved for the adults who let this situation escalate to do more lasting harm than a couple of teenagers behaving like teenagers ever could.