By Rob Poggenklass, Tony Dunn Legal Fellow
(as originally published in the Richmond Times-Dispatch on July 30, 2014)
Rob HeadshotVirginians have expressed justifiable outrage at a clear abuse of power. Prosecutors in Manassas have charged a 17-year-old boy with felony distribution of child pornography after he allegedly sent sexual images of himself to a 15-year-old girl. Though the girl also apparently sent explicit images of herself, she was not charged. Incredibly, law enforcement did not stop there. Officials took the atrocious step of getting a warrant to take photos of the boy’s erect penis. Fortunately, public indignation (or common sense) prompted police and the prosecutor to abandon the search. They have not yet abandoned the prosecution, however. The boy’s trial is set for August.
While the media understandably focused outrage on the disgusting attempt by law enforcement to photograph a teenager’s genitals, just as outrageous are the two felony charges still pending against the boy, for manufacturing and distributing child pornography. These are the same charges that, earlier this year, Commonwealth’s attorneys told a House of Delegates committee likely would never be filed in a sexting case.
No one questions that possession or distribution of child pornography is and always should be a crime. The problem is, laws against child pornography exist to protect children from abuse, not to turn children into felons. As the Manassas case demonstrates, subjecting a 17-year-old to felony child pornography charges is worse than the sexting itself. Few Virginians believe that such actions by a child should result in a felony adjudication and a lifetime on the sex offender registry, yet both are distinct possibilities.
A teenager who engages in sexting should have a conversation with an adult about the potential consequences of that risky behavior. But Virginia’s legislators should leave those conversations to parents and educators, not prosecutors and judges.
Earlier this year, the General Assembly briefly considered a bill that would make sexting a crime in Virginia. The rationale is that by creating a new sexting misdemeanor offense, Commonwealth’s attorneys will be less likely to bring felony child pornography charges against teens who sext. Aside from the numerous problems that arise when creating any new criminal offense, this legislation ignores one of the reasons Virginians are so incensed about this case: sexting between teens is dumb, risky behavior, but it should not be a crime. We cannot drag children into court for every poor decision they make.
Just three years ago, the U.S. Supreme Court announced a common sense decision articulating why the justice system treats children differently. Children “generally are less mature and responsible than adults,” they “often lack the experience, perspective, and judgment to recognize and avoid” bad choices, and they “are more vulnerable and susceptible to outside pressures than adults,” the Court said. These three points make clear why the solution to sexting lies in our classrooms and living rooms, not in our courtrooms.
Consider that a juvenile charged with a Class 2 misdemeanor still faces the possibility of six months of incarceration and registration as a sex offender, not to mention the humiliation of a criminal trial. In a recent study of the juvenile justice system, journalist Nell Bernstein found that “the greatest predictor that a kid would grow up to be a criminal was being incarcerated in a juvenile facility.” Because our juvenile justice system has strayed far from its century old purpose of diverting children from traditional criminal punishments and encouraging rehabilitation and has become nothing more than a junior varsity prison system, parents, educators and law enforcement should work together to find a solution for the sexting problem that doesn’t involve passing a new law to criminalize poor judgment.
The temptation is strong for a government to criminalize every dumb action a person can take. But especially when it comes to the actions of children, legislators must let parents, educators and prosecutors do their jobs. Commonwealth’s attorneys must be expected to act ethically and to exercise sound judgment in deciding which cases are worth prosecuting. Every prosecutor has professional, ethical responsibilities that go beyond those of other lawyers. As the Virginia State Bar’s Professional Guidelines make clear, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Commonwealth’s attorneys have broad authority to decide which crimes to prosecute, and which ones to drop. A prosecutor’s first and most important task is to see that justice is done. Justice is not served when a prosecutor brings a charge that turns a teenager who engages in sexting into a criminal.
There is no question sexting is bad and risky behavior. Turning kids into criminals is the wrong solution.
 
Rob Poggenklass is the Tony Dunn Legal Fellow at the ACLU of Virginia. Previously, he served as a Public Defender in Newport News for almost four years.