Should teenagers who exchange sexually explicit messages and photos face the same punishment as adults charged with producing and distributing child pornography?
The Virginia State Crime Commission is revisiting the teen sexting issue and may again consider legislation that would lessen penalties — primarily intended for pornographers — in consensual cases involving suspects who are minors.
Virginia law makes no distinction between adult predators producing and distributing child pornography and minors taking sexually suggestive photos of themselves and sending them to friends over their cellphones.
If tried as an adult, someone younger than 15 who takes a lewd picture of himself or herself could be committing a felony punishable by a prison term of five to 30 years and a place on the state sex offender registry. Even possession of such photos is a felony and, if the recipient passes it on or simply shows it on his or her phone to another person, it could be considered distribution of child pornography punishable by a term of five to 20 years.
It has been left up to authorities to use discretion in prosecuting such cases. The state crime commission took up the issue in 2009 but declined to endorse legislation changing current law out of concern it might provide loopholes that predators could slip through.
But sexting continues in Virginia and across the country. Earlier this year in the city of Manassas, a teenage sexting suspect was the subject of a search warrant so his genitals could be photographed by authorities. In the end, authorities backed off.
In February, a 16-year-old was charged in James City County after she tweeted a nude photo of herself. And in April, authorities in Louisa County discovered a central Virginia sexting ring said to involve more than 100 teens.
At the crime commission meeting last week, the panel’s staff reported on some proposals under consideration by the Virginia Criminal Justice Conference.
Jay Paul, the Prince George County commonwealth’s attorney and co-chairman of the justice conference, said the proposals are works in progress and may change as the crime commission, commonwealth’s attorneys, defense attorneys and others from around the state weigh in with suggestions. The justice conference consists of prosecutors, lawyers, judges and others who attempt to reach substantial consensus on proposals for improvements in the criminal justice system.
A subcommittee, which Paul chairs, has been studying sexting for three years. It decided last month that any sexting activity risks harm and that the state should not completely decriminalize it.
But the subcommittee and full conference agreed that taking a lewd photo of oneself without anyone else in the photo is the least serious form of juvenile sexting and one that might be more appropriately handled as a misdemeanor instead of a felony.
Also perhaps better handled as misdemeanors are cases where a minor possessing such an image is no more than four years older than all juveniles in the image, and cases where the possession of the image is with the consent of everyone in the photo.
Such misdemeanors would not place someone on the sex offender registry.
The justice conference recommended that there be a first-offender provision under which the charge would be dropped if the defendant successfully completes a treatment or education program, 10 to 100 hours of community service, and any other conditions the court orders.
After a presentation from the staff, some commission members expressed concerns about the justice conference proposals — such as the four-year age difference provision — and asked the staff to look into it. The staff is expected to present some proposed legislation for consideration at the commission’s November meeting.
Mary Davye Devoy, an advocate for the reform of Virginia’s sex-offender laws, opposed changing things in 2009 and now.
“I’m concerned that the proposed changes will result in more arrests, charges and prosecutions against Virginia’s teenagers for consensual sexting,” she said. “I still feel Virginia should not reinvent the wheel by creating a new criminal statute even if it’s just a misdemeanor.”
Devoy said the state’s current carnal knowledge law has a three-year age gap allowance preventing age-appropriate and consensual sex from becoming a felony.
“Why can’t we add to the current child pornography production, distribution, possession and solicitation statutes a disclaimer for consensual images between teenagers in age-appropriate relationships?” she asked. ..Source.. by FRANK GREEN
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