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Teen Sexting Is Not A Felony

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We need to take a moment to reflect on the state of our laws around "sexting" -- the sending of sexually explicit photos and videos, usually by text message -- and the way these laws are being interpreted and enforced by the police and prosecutors. And we adults need to consider the crazy mixed messages we are sending our teens about sexual behavior in our digital world.

The Washington Post has reported on the case of a 17-year-old boy from Manassas County, Virginia who is being charged as a felon for sending sexually explicit videos to a 15-year-old girl. The girl, in turns out, first sent the boy an explicit photo of herself and he returned with a number of videos. The mother of the girl reported the receipt of these "unwanted" videos to the police. That was in January of this year. The girl has not been charged.

The case was dismissed in June on a technicality, but then prosecutors refilled the charges and this time Manassas City police arrested the boy and took photos of his genitals against his will. Think about that for a moment. A minor is told to undress and have his penis photographed while in police custody in order to obtain evidence.

It gets worse. As the Post reported in their print edition, a trial was set for July 1 and the Assistant Commonwealth's Attorney Claiborne Richardson informed the boy's attorney that he must either plead guilty or police would obtain a search warrant for comparison to the evidence on his phone. When asked how he would do this, he explained, "We just take him down to the hospital, give him a shot and then take the pictures we need." In other words, take shots of his erect penis in order to compare those with the videos.

The teen's lawyer, Jessica Foster, was outraged.

"The prosecutor's job is to seek justice," said Foster. "What is just about this? How does this advance the interest of the Commonwealth? This is a 17-year-old who goes to school every day, plays football, has never been in trouble with the law before. Now he's saddled with two felonies and the implication that he's a sexual predator. I don't mind trying the case. My goal is to stop the search warrant. I don't want him to go through that. Taking him down to the hospital so he can get an erection in front of all those cops, that's traumatizing."

So, although the police already have photos of his, presumably, flaccid penis, they need to take him down to the hospital to have a medical procedure in order to induce an aroused state to get the pictures they need. Never mind that there is no scientific background to establish any difference, according to Micheal Iacopino, a member of the National Association of Criminal Defense Lawyers' sex offender policy task force. The police and prosecutors are overstepping the mark, to put it mildly.

Compare this approach to the one taken by New York. In that state they have a "diversion program" that may be used in lieu of criminal proceedings. If a teen is charged with an offense arising from or related to sending out sexually explicit images, the court may order him or her to an eight-hour education program which focuses on the consequences of sexting.

Let's be clear. Sexting is a risky behavior with potential harms -- both emotional and reputational for those involved. While some dismiss it as a modern form of flirting, sexting can have real world implications that can last a lifetime, particularly for teens.

But it should not be a felony. Taking photos or videos of child sexual abuse, commonly referred to as child pornography, is a felony. The law is there to protect minors from the sexual exploitation of adults. It is rightly considered one of the most heinous of crimes -- right up there with murder and rape.

What these two teens did was foolish, stupid and simply wrong. We need to educate ourselves and our kids about the risks and harms and take action, appropriately, when this behavior arises. Most importantly, we adults must not overreact -- from parents to police to prosecutors -- when we discover what our kids may have done. Incarcerating a teen until he's 21 and then labeling him a pedophile for the rest of his life is unjust and wrong.

Forcing a teenage boy to have an erection and taking a photo of the result is perverse and absurd. We adults should have a good hard look at ourselves, our laws and how we pursue them when it comes to teens, sex and their online behavior.

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