Last month, terror struck Albemarle County when a Dunlora teen vanished from her neighborhood late one night. Frantic, her parents took to social media to plead for help in what they described as an abduction, and police sprang into action, asking for the media’s assistance in issuing an alert. In the wake of other recent teen disappearances—Alexis Murphy, Samantha Clarke, and Dashad “Sage” Smith—and with the unsolved slaying of Morgan Harrington looming large in local memory, the fear was understandable.
But by the following morning, the teen was home safe, and the October 23 arrest of a 24-year-old Norfolk man turned the focus to another issue, one that’s snaring teens across the country in a web of laws that lag behind the culture of technology: sexting.
In hindsight, the Internet safety advice given to parents in the early days of the Web seems laughably naive: Keep your desktop computer in the family room so you can see what your kids are up to. Don’t send pictures electronically. A 1998 educational video titled “Safety Tips for Kids: Internet and Street Smarts” archived online seems especially archaic in today’s world where ubiquitous smart phones mean that young people have powerful, handheld computers everywhere they go. The video opens with an image of a clunky VHS tape, then features a boy and a girl awkwardly discussing “things” they saw online that made them “embarrassed” and “uncomfortable.”
Today, those same two kids who were so shaken by their unintentional viewing of pornography could well be charged as sex offenders for making their own X-rated films using nothing more than a smart phone. And here’s the kicker: They may not even know they’re breaking the law.
So called “sexting” has become a frequent enough occurrence among local teens that area lawmakers, educators, and police are joining forces to figure out how to better address the issue.
“We’ve had seven cases in the last six weeks,” said Albemarle County Police Chief Steve Sellers, who noted that his department, along with the county Commonwealth’s Attorney’s office and the county public schools will host an early December forum to kick off an increased effort at educating parents and teens on sexting. While the term refers specifically to the sending of nude or sexually graphic images by cell phone, teens can use various online methods to share such images.
In the Dunlora case, the 24-year-old Norfolk-based man is accused of possessing and preparing to distribute graphic sexual images sent to him by the 16-year-old Albemarle High School junior, with whom he first made contact online, according to prosecutors. The teen in that case was not charged with a crime, but the man was charged with four felony child pornography counts and could face decades behind bars.
Regardless of the age of the sender or recipient, the transmission of sexual images of a minor can come with heavy legal consequences for both parties.
“This is a really serious offense,” said Albemarle County Commonwealth’s Attorney Denise Lunsford, who noted that the same laws written to protect children from predators can be used against them. A 15-year-old who takes a naked photo of herself and sends it has, in the eyes of the law, created and distributed child pornography. Likewise, the underage teen who receives the image is technically in possession of child porn.
“Kids are not thinking about a felony,” said Lunsford, who recently attended a statewide legal conference where prosecutors, defense attorneys and judges discussed the issue of sexting. “The question is how to address it.”
Sex, phones, and the law
“There’s a scale or gradation, and on one end there’s a boyfriend or girlfriend sending a picture,” said Lunsford. “On the other end is someone who may take a picture unbeknownst to the person, or takes a picture that was sent to them but distributes it maliciously.” Lunsford herself was the target of such alleged malicious behavior in the late summer, as detailed in The Daily Progress and other news outlets. In September, she took legal action against a Missouri man who posted nude images of her she said had been taken without her knowledge. She declined comment on that situation.
But while adults may have the inner fortitude to handle the public humiliation such an incident entails, many teens don’t possess the coping skills.
Such was the case with a Saratoga, California, teen who was sexually assaulted and photographed by a group of boys last year after she’d passed out from alcohol consumption at a party. Humiliated and bullied by classmates in the aftermath of the incident, she committed suicide in September 2012. The heartbreaking story of Audrie Pott, detailed in a recent Rolling Stone magazine feature, illuminates issues common to these situations: a culture that promotes the sexualization of young women and leads young men to objectify them, access to unprecedented technology, and the immature teen brain that leads to impulsive behaviors without consideration for future impact.
“What we know about that is that the executive function of the brain, the prefrontal cortex, is not fully developed until about age 25,” said Jeffrey Fracher, a forensic psychologist who consults on local sexting cases. Today’s teens, he said, are developmentally no different from earlier generations; they’ve always been impulsive, hormone driven, insecure, and immature. It’s the coupling of those normal developmental traits with the unprecedented access to technology that’s creating a nightmarish mix.
Forensic psychiatrist Andy Thomson, who also consults on local cases, agrees.
“We have adult sexual impulses before we develop adult restraints at a neurological level,” he said, noting that teens have always experimented with sex. “Technology allows that acting out to take new forms,” he said.
In the majority of cases involving teens and sexting, Fracher said, counseling is the appropriate outcome, and Lunsford said that in most of those straightforward cases where sexually graphic images are sent between two underage teens, she recommendseducation for the young perpetrators rather than prosecution.
However, Fracher noted, “one in 10 turn up scary,” in that an offending teen shows signs of predation, sadism, or an arousal to violence. “Those are the exception and not the rule,” he said.
In a sense, then, the law is set up to deal with a small number of extreme cases where two teens are involved and to protect teens and children from older, hardened sexual predators who drive the online child pornography culture. But there are so many gray areas.
Another complication in dealing with sexting cases is the arbitrary legal line between childhood and adulthood. While an 18th birthday has tremendous legal implications, from a teen’s social perspective it means nothing. A 17-year-old dating a 16-year-old isn’t uncommon, and when that 17-year-old turns 18, no one expects them to break up because of it. But the legal dynamic of the relationship changes, and the older partner is suddenly an adult dating a child, at least in the eyes of the laws regulating child pornography.
If the two teens have sexual contact, the 18-year-old could face a misdemeanor charge for contributing to the delinquency of a minor. But receiving a naked picture of that same girlfriend can bring a slew of felony child porn charges that can upend a life and land that teen on a website that amounts to a modern-day Scarlet Letter: The Virginia Sex Offender Registry.
A sex offender label means some jobs and homes are off limits. Sex offenders moving into certain neighborhoods have inspired protests and been targeted for violence. Virginia realtors are even required to instruct their home-buying clients to perform “due diligence” on the proximity of sex offenders before signing a contract.
The caution is understandable, and certainly plenty if not most sex offenders should and do inspire caution or even outright fear. But should an 18-year-old who has sexually explicit photos of his younger girlfriend be marked for life?
“It makes no sense,” said prominent defense attorney John Zwerling, who’s based in D.C. but has handled numerous local cases. “If two people who are three weeks apart in their birthdays send pictures back and forth, as soon as one hits 18 and receives a picture, that’s receipt of child pornography.”
As the age gap between parties increases, so does the severity of possible charges. Virginia law sets an age difference of seven years as the cut-off between misdemeanor and felony for certain sex-related offenses involving minors. That explains why that 24-year-old Norfolk man is looking at a potential 45-year sentence for his role in the October sexting incident.
Abduction report turns sexting nightmare
The Dunlora neighborhood, an upscale enclave off Rio Road that’s home to numerous professionals including Commonwealth’s Attorney Lunsford and an Albemarle County judge, woke up to a community alarm on Saturday, October 18. A 16-year-old girl, one of their neighbors, had vanished after telling her parents she was going out to take pictures of the full moon. After discovering her phone on the ground near where she said she’d be, her parents reported her abducted and took to social media sites to ask for the community’s assistance.
The girl reappeared the next morning walking on Rio Road and was in school the following Monday. It seemed as if the crisis had been averted. Less than a week later, police announced the arrest of Jonathan Lee Messer, a Kingsport, Tennessee, man enlisted in the Navy and stationed in Norfolk.
Messer, who turned 24 on October 23, the day of his arrest, is charged with four felonies: use of a communications system to procure or promote child pornography, preparing to produce child pornography, and two counts of possession of child pornography. He allegedly committed the offenses from October 13 to 18, the day the teen disappeared.
No abduction charges were filed, and in an October 28 bond hearing in Albemarle Charlottesville Juvenile and Domestic Relations Court, prosecutor Jon Zug revealed that the graphic sexual images were sent through “Internet chat” and that Messer and the teen had arranged to meet. Messer claimed he didn’t know the teen’s age, Zug said, but had admitted he knew she was a junior in high school and had only a learner’s permit.
Messer’s court appointed attorney, Pam Johnson, did not return C-VILLE’s call, but local defense attorney Adam Rhea said that Messer could be facing the child pornography charges even if he didn’t initially know the teen was underage.
“That defense has not really worked in sexual charges like statutory rape,” said Rhea soon after that hearing, describing the court’s typical approach: “You knew or you should have known.”
Messer will next appear in Albemarle Juvenile and Domestic Relations Court on January 6.
The apparent irony of the law regarding sexting is that, as mentioned previously, an adult who has consensual sex with a teen who is over the age of 16 would be guilty only of a misdemeanor count of contributing to the delinquency of a minor. That offense carries no recommended jail sentence. But soliciting the electronic transmission of sexual images from that teen is a felony.
That discrepancy in severity of charges appears to be in play in the case of 43-year-old Albemarle County man Jeffrey Wayne Roach, who was originally charged with the misdemeanor offense of contributing to the delinquency of a minor stemming from an alleged November 5 sexual encounter with the teen described in search warrants filed in Albemarle Circuit Court. On November 15, Roach was charged with three additional felonies: two counts of production of child pornography and one count of the use of electronic means to solicit a minor. The charges came after authorities executed searches of his apartment, cell phone, and Jeep.
“It’s bizarre,” said Zwerling of the law’s divergent treatment of actual sexual acts with minors and just taking pictures of them.
Zwerling is no stranger to controversy or high profile cases.
Back in 1994, he helped successfully defend Lorena Bobbitt, the northern Virginia woman who was charged with malicious wounding for severing her husband’s penis after she claimed he raped her. Locally, Zwerling defended UVA alum Andrew Alston, who was controversially convicted of voluntary manslaughter and sentenced to only three years in the stabbing death of local firefighter Walker Sisk. Zwerling won a not guilty verdict in his defense of Raelyn Balfour, the Earlysville mother charged with involuntary manslaughter after she forgot her infant son in the car when she went to work at the JAG School back in 2009.
Zwerling’s D.C.-based firm specializes in defending those accused of sex crimes against children, and while he understands society’s revulsion for child predators, he believes the law has gone too far in targeting people who are just looking, not touching.
“The theory is, every time someone looks at the picture, it makes things worse for the child who was abused,” said Zwerling, who describes the punishments for certain child pornography offenses as “off the charts.”
At least one federal prosecutor doesn’t see it that way.
The digital underworld
Nancy Healey is cuing up videos on her laptop in the windowless library of the U.S. Attorney’s office in the Federal Court building at the corner of Water Street and Ridge/McIntire. Slim with wavy brown hair past her shoulders, her easy smile and warm demeanor belies her reputation as a tough prosecutor and a fearless advocate of abused children. She laughs as the first clip rolls. It’s comic actress Julia Louis-Dreyfus during an appearance on “Saturday Night Live” playing a clueless mother taking a class on how to use social networking site MySpace.
Louis-Dreyfus’ character is there so she can interact online with her teen daughter and improve their relationship. Her classmates—all of them middle aged men—seem to have a different purpose. One asks the instructor if he can lie about his age online and another wonders about inviting someone to meet in person. The skit’s message is clear: the Internet is full of child predators, and parents don’t understand the technology enough to recognize the danger.
As Assistant U.S. Attorney and coordinator of the joint federal/state online safety program Project Safe Childhood and the mother of a middle schooler, Healey understands the dangers lurking online all too well and believes educated parents are critical in protecting teens. She uses humor to teach Internet safety to parents and kids across Virginia. But while levity is useful in education, there’s nothing amusing about the other part of Healey’s job: prosecuting child predators.
“There are an estimated 50,000 child predators online at any given time,” said Healey, who takes teen sexting cases seriously because the sexually graphic photos exchanged by teens can, and do, end up in the hands of child predators. A photo online lasts forever, and Healey said victim impact statements given at sentencing of child pornography offenders reveal the suffering the victims experience.
“The stuff that these kids say about the knowledge that their pictures are out there breaks your heart,” said Healey. “They worry that someone’s going to recognize and come after them. There’s the humiliation and embarrassment. Some have been stalked, have been the subject of blogs about them. Some true names have been found out. These people often will never have security that you and I may have. It is profound harm that affects their ability to function normally in everyday life.”
She describes cases prosecuted in Virginia and elsewhere in which a predator posed as a young teen to persuade other teens to send sexually explicit images of themselves. The teens have complied in those cases, believing they were communicating with someone their own age. Healey said she’s not surprised.
“Girls and boys go through this awkward phase,” she said. “They wonder, how do I get attention? They accept flattery and do stupid things.”
Sexual predators are typically a step ahead of parents when it comes to technology, she said, and they figure out the best sites to meet kids online and how to lure them into compromising situations.
“Boys are big targets on gaming sites,” said Healey, mentioning the online chatroom component of Xbox and Playstation video gaming consoles as hotbeds for predators. “They’ll misrepresent who they are, say whatever they need to do to have someone talk to them, “ she said. “The risk is that kids will provide too much
The worst case scenario, of course, is that a child ends up in the hands of a predator, being repeatedly abused. Healey has seen horrors. She prosecuted a case that involved a 19-day-old victim. A video from another case haunts her: a still unidentified young boy being tortured and raped by a gang of men. The video was silent, but the child’s suffering is apparent. “You could see him crying and screaming,” said Healey, shaking her head and closing her eyes as though trying to erase the mental image.
While the predator who possessed and distributed that video was successfully prosecuted, Healey said to the best of her knowledge the boy has never been identified. But many others have.
Earlier this month, a massive global sting operation out of Toronto netted 341 arrests and claims to have saved 386 children from sexual abuse.
The early November arrest of McIntire School of Commerce Associate Dean Michael G. Morris coincided with that initiative, called Project Spade, but Healey said his arrest was not related. Forty-six-year-old Morris, who waived his right to a preliminary hearing and was indicted on the charges on Thursday, November 21, is accused of accessing and sharing child pornography through a peer-to-peer file sharing site. He is being held without bail at the Central Virginia Regional Jail, and his attorney, David Heilberg, declined comment.
His arrest, however, offers evidence that consumers of child pornography can come from all walks of life. The same, of course, is true for victims.
“Kids who are from wealthy educated families and kids who are in less fortunate circumstances are victims,” said Healey, who noted that the chances a kid will fall prey to a child predator—or engage in sexting—increases with greater access to technology and reduced supervision. Big houses with basement rec rooms, for instance, can mean kids have privacy to conduct online interactions away from adults.
“The ones who are in more fortunate circumstances may be at greater risk,” she said.
Tackling the problem
Unfortunately, unlike 20 years ago, online safety now requires more of parents than placing the home desktop computer in a high-traffic area. But ultimately, Healey said, the same thing that kept kids safe back then—and even before the Internet existed—works today.
“Communicate; start a dialogue. Tell your kid that if a stranger contacts him online, you need to know,” she said citing alarming statistics from various studies: One in seven kids receive an online solicitation from a stranger, but, of those, only one in three will tell their parents. Fourteen percent of teens have had a personal meeting with someone they met online.
“That’s not a good thing,” she said.
While those figures may seem terrifying, the University of New Hampshire-affiliated Crimes Against Children Research Center parses those statistics in a 2007 report, and suggests that the one-in-seven number Healey cited is not referring only to contact by adult predators but by other teens who aren’t actually soliciting sexual contact. “Many were simply rude, vulgar comments like, ‘What’s your bra size?” the report reads.
While the majority of teens won’t ever be contacted by a sexual predator, nor will they participate in sexting, there’s enough danger that education and awareness are key for teens and parents.
Healey cautions against some parents’ “knee-jerk response” to take technology away from kids if they report encountering something disturbing.
“This is how they communicate,” she said. “Schools are giving kids computers. We can’t escape by putting our heads in the sand and saying no.”
While kids should keep their technology, Healey believes parents are too cautious about preserving their children’s privacy and too reluctant to set limits.
“We’re crazy if we don’t look at their stuff,” she said. “They’re too young to process, too young to know whether what they’re doing is a good idea.”
Amy Webb, a local real estate agent and parent of two teenage daughters in Albemarle County, agrees with Healey, and said she knows few parents who are as vigilant as she is about their teens’ online lives. She knows her daughters’ passwords and uses a web filtering service called opendns.com.
“It’s basic parental control,” she said. “If they try to go somewhere they shouldn’t, they get a picture of my face and a message that they need to see the webmaster.”
But ultimately, Webb realizes, she can’t prevent her daughters from having wide open access in other locations, and she believes the best defense is to educate kids about an online culture that encourages teens to exploit themselves and each other using technology.
That belief is supported by the Crimes Against Children Research Center, which advises that educational efforts should focus more on teens than parents.
“Developmentally appropriate prevention strategies that target youth directly and focus on healthy sexual development and avoiding victimization are needed,” says a message on the organization’s website.
That’s the approach the Albemarle County School system is taking, said spokesperson Phil Giaramita, who noted the school’s success in reducing incidents of bullying by putting students in charge of designing and administering programs, including the creation of a videotaped PSA.
“We’re going to ask students to get involved the same way in sexting that they have been in bullying prevention,” said Giaramita, adding that a parent council comprising the heads of every county school’s PTO will also be discussing ways to address sexting and related issues.
City schools are not taking as proactive a stance yet on the issue, but city schools spokesperson Beth Cheuk said administrators are discussing sexting education and outreach to parents and teens for the spring.
As for a need to rewrite laws to specifically address teen-to-teen sexting and the gray areas it creates, Delegate Rob Bell, one of 13 members on the Virginia State Crime Commission, said the answer—much like the subject itself—isn’t clear. The Commission, which makes recommendations on criminal justice legislature, has debated the issue at length, he said, but has been unable to settle on any proposed changes.
“The ones that would help that teenager would also provide a road map for really bad actors to produce and distribute child porn,” said Bell, who believes the wide discretion in charges currently available to prosecutors may be enough.
“We’re open to looking for ways to not bring in every high school kid who does this,” he said. “But we also want to make sure we don’t create a loophole that enables dangerous pedophiles to avoid prosecution.”
Webb said she believes the solution lies less in the law and more in teens’ communication with their families and each other.
“Half the problem is we tell them not to do this and then we throw them back out into the cesspool that is the Internet,” she said. “The only real way of attacking this problem is to see it as a holistic issue about values. It’s not about specific behaviors. We need to address the underlying issue of how we treat each other and why.”
On Monday, December 2 at 7pm Albemarle County Schools, in conjunction with the Albemarle County Police Department and the Commonwealth’s Attorney’s office, will hold a forum at Monticello High School to start a conversation with teens and parents they hope will help raise awareness about sexting and other issues of online safety. The forum is open to all area parents and teens. Register online at http://www.safeschoolcville.org/2013Sexting411Forum.html.