by Frank Knaack, ACLU of Virgina Director of Public Policy and Communications
It’s been all over the news. Manassas City Police wanted to take a photo of a teen’s erect penis and were willing to use drugs to cause the erection. In fact, officials went so far as to obtain a warrant requiring the teen to submit to these humiliating and degrading photos (we are glad the police later said they would not to go forward with executing the warrant). What crime could justify such an invasive response by the government? Two felony charges of manufacturing and distributing child pornography . . . serious stuff. But wait, what did the teen actually do? Well, he allegedly engaged in consensual sexting with his then girlfriend – a 15 year old who allegedly had previously sent him a sexually explicit text. The boy allegedly responded by sending a video of himself engaging in a sexually explicit act. The girl was not charged for her sext, but when her mother complained about what the boy had allegedly done, the prosecutor decided to charge the boy with two felony offenses that could have resulted in three years in juvenile custody and a lifetime on the sex offender registry. The fact is that a majority of teens report having either sent or received sexually explicit texts, including 20% of middle school students. If this prosecutor’s response to an admittedly dumb act was the norm, we could have a teen felony crisis across America. And, if present disparities in law enforcement were replicated, this crisis would fall more heavily on boys and teens of color.
Let’s back up. Teens can be criminally charged for sexting? And, it’s a felony? Well, even though Virginia doesn’t have a specific law that criminalizes sexting, as this Northern Virginia episode shows us, some prosecutors seem determined to use other criminal laws (designed for much different acts) to charge teens who engage in sexting. In this case, the prosecutor used his discretion to charge the boy under a felony obscenity law designed and intended to protect kids from dangerous predators, not criminalize kids for exercising poor judgment by sending sexually explicit pictures of themselves to their boyfriend or girlfriend. And, let’s not forget the collateral consequences of a felony conviction for this kind of sex offense in Virginia, including a lifetime on the sex offender registry (with its attendant limits on where you can live and what work you can do).
The extent this prosecutor was willing to go in this case represents what we hope is an extreme example. As our Legal Director told the Associated Press, "[p]eople have a constitutional right to control their bodies," and thus the warrant seeking the nude photos raised serious constitutional concerns. Unfortunately, the attempt to criminalize kids for exercising poor judgment is far too common despite representations made to the Courts of Justice Committee of the Virginia House of Delegates that prosecutors wouldn’t be likely to charge teens for this kind of behavior. Even misdemeanor teen sexting laws like those that have been adopted in some other states are highly problematic. While the misdemeanor laws may make it less likely that teens will be charged with a felony for sexting, the real problem is the criminalization of the behavior at all. Both misdemeanor and felony prosecutions for sexting can carry jail time, large fines, and sex offender registration, thus making the teen’s future more than bleak before they even finish high school (if they are able to). Imagine if all states went this route and every kid was prosecuted equally without regard to race or gender? Over half of the American youth could have a criminal record, including 20% of middle school students.
While the incident in Manassas City may have made Virginians question the heavy handed approach taken by the prosecutor in this case, we should be concerned with any attempt to criminalize sexting. Sending teens into the criminal justice system for sexting makes it more difficult for the teen to become a productive adult. That’s a poor solution. Instead, we should look to parents and educators to teach students about the need to respect their own bodies and the privacy of their peers, the often blurry line between consensual sexting and harassment, stalking, and bullying, and the need to use electronic media responsibly.
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