The XX Factor

This Should Go Without Saying, But: Prosecutors, It’s Not OK to Photograph a Boy’s Erect Penis

Not for police use at this time

Today’s apparent insanity: A sexting prosecution in Manassas City reportedly gone off the rails. According to Tom Jackman in the Washington Post, the police there are trying to serve a wildly inappropriate warrant on a 17-year-old accused of sending a pornographic video of himself to his 15-year-old girlfriend. “Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said.”

I read that sentence three times and I still don’t believe it. It’s not even clear that the girl who received the video didn’t want to get it. According to the boy’s defense lawyer, she initially sent him photos of herself, and then he sent the video of himself in response. Her mother filed a complaint. He was charged with two felonies. Before trial, defense lawyer Jessica Foster says, the prosecutor told her that her client “must either plead guilty or police would obtain another search warrant ‘for pictures of his erect penis,’ for comparison to the evidence from the teen’s cell phone.”

Another prosecutor says Foster’s account is “not credible.” But if it’s true, then it sounds like the prosecution was trying to railroad a teenager into pleading guilty by threatening him with a serious invasion of privacy.

That’s wrong. I also wonder about the wisdom of the underlying prosecution. This boy could go to prison until he’s 21 and wind up on the state sex offender list for life, according to the Post. For sending a video of himself, to a girl who may have signaled she was open to getting it? That seems wrong too.

Maybe there is more to this story, and it will turn out that what this boy did is creepier than it now appears. But the question of consent should be key here. States are all over the map on how to handle teen sexting. What they should do is distinguish between consensual sexting, and (especially) sending out an image of someone who would not want that picture or video to circulate, or to someone who does not wish to receive it. As I’ve written before, “It’s not that the first kind of sexting is a good idea—it’s that kids shouldn’t get caught up in the criminal justice system for it, whereas nonconsensual sexting is a different story.”

In Manassas, it’s the bullying, salacious, just-plain-wrong search warrant that has our attention. But it may well be a symptom of a larger problem. Sometimes prosecutors hear the word “sexting,” especially from an angry parent, and seem to lose their marbles.