[Warning: graphic sexual content discussed. No way to avoid it in this diary.]
Pretty clearly I misspoke at various times in the rec-listed diary on the Manassas sexting case for which the authorities allegedly want to photograph the 17-year-old defendant's erect penis. I had suggested that the defendant filmed himself having sex with his 15-year-old then-girlfriend; the articles to-date say nothing about the content of the videos he sent her. I then went on to state that the sex they were having was itself illegal, and I'm pretty sure now that I misread an "under-15" statutory rape law as including 15-year-olds.
I further failed to notice where the initial article did clearly state that the authorities would "give him a shot" if necessary to induce an erection. That does affect the constitutional analysis, but not by as much as you think. We'll get to that in a second.
I am sorry that these errors derailed and inflamed the discussion at times. But you've been wrong too. The diarist and others claimed that she sent him nude pictures as well; the articles only say she sent "pictures." Others suggested that race may be a factor; the defendant, in fact, is white.
So with more time to think this through, let me sketch out where I think we are:
What are the charges?
"[T]wo felony charges, for possession of child pornography and manufacturing child pornography, which could lead not only to incarceration until he’s 21, but inclusion on the state sex offender data base for, possibly, the rest of his life."
What else have the police said?
According to a police statement last night, "On January 23, 2014 Manassas City Police was contacted by a parent of a 15 YOA female juvenile who was sent pornographic videos by a 17 YOA male suspect after repeatedly being told to stop." It goes onto state that "It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case."
This raises a few questions: who told him to stop -- the girl, her parents, the police, or others? And while it's not the policy of the department to authorize invasive searches, didn't they just do so anyway, but just not conduct it yet? Because it sure sounds like some warrant has already been obtained.
Remember: we only know about this case because his family and attorneys went to the media. There's a whole lot of spin going on from all sides.
Isn't that inherently bullshit to charge felonies for sexting?
I generally agree. There are states which have have recently specified that it's only a misdemeanor for minors to exchange sexually explicit materials with each other. I think that's a better approach, to the extent this criminalized at all. I don't see the point in using actual prosecutions in cases which don't involve coercion or humiliation -- the sharing of pictures beyond a consenting couple, for example -- but I (more than many here, I'm guessing) recognize there is a value in having law enforcement be involved here to rule that sort of thing out first, and to provide some recognition that sexual exploitation (if that's what's going on) is serious.
We don't have any evidence here, however, to support felony charges and the accompanying punishment. Assuming the photos were consensual, and documented legal behavior, and weren't distributed widely ... I can't justify felony charges on the facts we know. We don't know what the nature of the relationship was between this 17-year-old football player and a 15-year-old girl, but at least we know we don't know that.
Why do they need this picture, anyway?
That's a damned good question. We don't know, because they already have a picture of him in a flaccid state. The child pornography statute requires that the images include "an identifiable minor ... who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature," but we don't know why he isn't otherwise already identifiable either through the images themselves or other testimony.
Ok, so, what happened?
There's a lot we don't know. We know she sent him "pictures". We know he responded by sending her an explicit video.
Were the pictures she sent him explicit? We don't know, and we don't know if they involved her, him, both of them, or what. We know he is charged with both manufacturing and possessing child pornography, and these charges (esp. the latter) would be odd to bring if it's only pictures of himself.
Who's in the video(s) he sent her? Again, we don't know if it's him, her, both of them, or what. Presumably, his erect penis is in one of them, or the photo request makes no sense.
Was he told to stop sending them? That's what the police claim. By whom, if anyone, we don't know.
What else don't we know? Were these pictures and videos sent to others?
Get to the constitutional issue, lawyer-boy.
Let's acknowledge that the police now claim it isn't their policy to ask for something invasive, but let's assume they did ask for court permission to inject something into the defendant to force an erection, then photograph it. (The initial article suggests a search warrant was already obtained.)
First off, this isn't a Fifth Amendment (self-incrimination) issue; that's a testimonial privilege, and he's not being required to speak. It's a Fourth Amendment issue -- is this an unreasonable search?
Winston v Lee, a 1985 Supreme Court case, guides the analysis. It involved a request to perform surgery to remove a bullet from a criminal defendant in an armed robbery case, with the prosecutors claiming that the bullet would provide evidence demonstrating his guilt (or innocence). Its analysis started from what the Court had already established for blood draws associated with DUI charges (the Schmerber case), and stated:
The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure. In a given case, the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers....Removing the bullet, however, did not meet that test: "The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be 'reasonable.' In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it."
Schmerber's inquiry considered a number of other factors in determining the "reasonableness" of the blood test. A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. "[F]or most people [a blood test] involves virtually no risk, trauma, or pain." Id., at 771. Moreover, all reasonable medical precautions were taken and no unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.
Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. Intruding into an individual's living room, see Payton v. New York, 445 U. S. 573 (1980), eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U. S., at 361, or forcing an individual to accompany police officers to the police station, see Dunaway v. New York, 442 U. S. 200 (1979), typically do not injure the physical person of the individual. Such intrusions do, however, damage the individual's sense of personal privacy and security and are thus subject to the Fourth Amendment's dictates. In noting that a blood test was "a commonplace in these days of periodic physical examinations," 384 U. S., at 771, Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity.
Weighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence. This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means of determining the degree to which a person is under the influence of alcohol." Id., at 771. Moreover, there was "a clear indication that in fact [desired] evidence [would] be found" if the blood test were undertaken. Id., at 770. Especially given the difficulty of proving drunkenness by other means, these considerations showed that results of the blood test were of vital importance if the State were to enforce its drunken driving laws. In Schmerber, we concluded that this state interest was sufficient to justify the intrusion, and the compelled blood test was thus "reasonable" for Fourth Amendment purposes.
So what about the erection injection? The original diarist noted in the comments that the three drugs known to induce an erection all had to be injected directly into the penis. That certainly raises the dignitary concerns beyond an injection into the arm (or a pill), which might otherwise be closer to a blood draw than an invasive procedure, even beyond the obvious dignitary interests presented by the photography itself. It may also raise the level of medical risk involved in doing this. What we don't know is why the prosecutors believe there is a compelling need -- isn't the 15-year-old's testimony going to be enough to corroborate? (Is there a fear she will lie on the stand to protect him?) We just don't know. To be sure, I can imagine circumstances in which this kind of evidence is necessary, but not on the facts presented so far.
Again, I apologize for my errors yesterday. Hopefully, this discussion will be better.