A 17 year-old Virginia teenager who is under investigation for sending a consensual sext to his 15-year-old girlfriend may be forced to have an erection in front of police as evidence in the case.
The boy, who the Washington Post will not identify for privacy reasons, is being charged with two felonies — one for possession of child pornography (sexts from his girlfriend) and one for manufacturing child pornography (taking video of himself). He faces time in prison, as well as permanent placement on the sex offender registry.
Police have already taken photos of the boy’s genitals as a part of their investigation, his lawyer told the Post. But they want to bring the teen to the hospital and inject him with something that will force an erection, to compare his erect penis to that in the video found on his phone.
University of Pennsylvania law professor David Rudovsky, who specializes in invasions of privacy by police, doubts that there is legal standing for police to pursue such measures.
“In my view, it’s not [a legal search] for this reason: Normally the police can get a warrant to conduct a search if they have probable cause that it will find evidence they can use in criminal trial,” Rudovsky said. “What the courts have said in a number of situations is that even if there’s some cause to believe that the procedure might lead them to evidence, where it involves a serious intrusion of personal dignity and privacy, you have to balance that with the nature of the intrusion.”
Rudovsky cited specifically a case, Winston v. Lee, in which police sought to extract a bullet from a man’s body to use it as evidence that he had been involved in criminal activity. Ultimately, the Supreme Court ruled that such an invasion was unreasonable, citing the fourth amendment’s guidance on search and seizures.
“It seems to me that this case is similar to that one,” Rudovsky said. Taking pictures of a boy’s erection is “too invasive in terms of his personal dignity… therefore the police need to have good reason, it needs to be a serious case and they need to have need for this evidence. I don’t think they have either.”
He also pointed to several other problematic factors in the case: “If they’re complaining about the child pornography, that’s what they’re incidentally creating. And they’ll want to use it in court,” he said. “Why they’re going after this guy to felony charges also seems like a misapplication of discretion of resources.”
Upon request for comment, the Manassas City police department referred ThinkProgress to the Commonwealth Attorney’s Office, citing the fact that the boy is a juvenile. The Attorney’s Office did not respond to a request for comment by the time of publication.
As technology advances and teens find new ways to express their sexuality, legislators and law enforcement are grappling with how to deal with sexting. At least 20 states have criminalized sexually explicit messages between teens. There is a perception that sexting has dangerous implications for young people. There are actual risks when it is used for cyberbullying, but teens actually overall report positive experiences sexting, and there is no indication that it leads to more “deviant” behavior. Meanwhile, the amount of manipulative sexting is on the decline.