When 17-year-old Trey Sims’s girlfriend texted him nude images of herself, he reciprocated. What they saw as romantic — if not exactly innocent — exuberance led Virginia Assistant Commonwealth Attorney Claiborne Richardson to charge Mr. Sims with felony manufacturing and possession of child pornography after the girl’s mother reported the swap to authorities.
During the investigation that followed, Detective David E. Abbott compelled the teen to permit photography of his genitalia to prove the case. That incident is at the core of a civil suit against the police department.
“The detective was taking the pictures to compare to ones they claimed were child porn so he was taking pictures for the purpose of duplicating child porn,” said Maxwelle Sokol, an attorney with Victor M. Glasberg & Associates, who represents Mr. Sims in the civil case. “The law doesn’t allow that.”
Other motivations for the photography session may have come to light when Detective Abbott was served with warrants for abuse related to boys on a hockey team he coached. Shockingly, Abbott committed suicide in the aftermath of those charges.
Mr. Abbott took the pictures after obtaining a secure detention order permitting Trey’s seizure even after charges had been dropped, according to court records.
“Det. Abbott had, somehow, obtained a search warrant from a magistrate calling for photographing Trey’s body, including, specifically, ‘a photograph of the suspect’s erect penis,’” wrote Sokol in her December 6, 2016, appeal brief.
Mr. Sims was subsequently charged again and released on home confinement with a family member until a new trial date two months later. Upon trial on August 4, 2014, the Juvenile and Domestic Court suspended the imposition of a sentence against Mr. Sims and a year later charges were dismissed after he completed probation.
Mr. Sims’s civil case cites the Fourth Amendment right to be free from unreasonable search and seizure as its cause of action.
“All minors have, and Trey had, a right not to be forced to pose for sexually explicit pictures,” said Ms. Sokol, who filed Sims v. Richardson in the Eastern District of Virginia.
Sims v. Richardson is among a rising number of federal lawsuits being filed that have to do with teens, sexting and allegations of child pornography.
“There are a lot of factors that go into making such a determination, but basically we all know pornography when we see it,” said Gerald Sauer, founding partner with Wagner & Sauer.
The U.S. District Judge in Sims v. Richardson had an unequivocal opinion that law enforcement did not act unreasonably in seeking a search warrant to make the photographs.
“Similar warrants have been issued and upheld to collect evidence during criminal investigations and prosecution,” ruled Judge Claude M. Hilton in a memorandum opinion dated Sept. 19, 2016.
But when Counselor Sokol appealed the decision to the U.S. Court of Appeals for the 4th Circuit, the justices had a different view.
“Child pornography is child pornography even if an officer is taking pictures in the course of his investigation of it,” said Ms. Sokol, who is based in Alexandria, Virginia.
On December 5, 2017, the federal appellate court reversed the U.S. District Court for the Eastern District of Virginia’s judgment.
Circuit Judge Barbara Milano Keenan wrote, “Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings.”
The Supreme Court first dealt directly with the issue of child pornography in 1982 by ruling unanimously in New York v. Ferber that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity even if the material was not obscene.
“Using children in pornographic materials is harmful to them physiologically, emotionally, and mentally,” wrote Counselor Glasberg in Mr. Sim’s appellate brief. “For precisely these reasons, courts have required authorities to be especially careful when conducting strip searches of children. Sexually intrusive searches demand particular justification and care.”
Before the internet and digital media, when teens and children played show and tell with their private parts in person or with a Polaroid, it was considered child’s play. Given that cell phone cameras not only snap digital photographs but also record audio and video, the experience can be devastating, especially if an adult is involved or exploitation is alleged.
“The increase in these lawsuits indicates that as a society we’re terribly ambivalent about sex,” said John Humbach, professor at the Elisabeth Haub School of Law at Pace University in New York.
The laws were recently tested in the State of Minnesota v Krista Ann Muccio, in which Ms. Muccio allegedly exchanged sexually explicit text messages with a 15-year-old boy whose father reported it to law enforcement. Ms. Muccio, who was 41 years old at the time, met the teen while working as a lunch assistant in the cafeteria that serves Simley High and Inver Grove Heights Middle School students.
According to media reports, Ms. Muccio was charged with communicating with, describing sexual conduct to, and possession of pornographic work involving minors.
“In order to fall within the child pornography rules, in some states, it’s required to prove the intent to arouse sexual desire,” Mr. Sauer said.
A Minnesota appeals court subsequently struck down a state law aimed at adults who use social media to lure children into sexual encounters and the state’s Supreme Court in State of Minnesota v Krista Ann Muccio overruled the lower court.
“Courts are grappling with the nature of sexting communication and whether or not it falls within the protections of the First Amendment,” said Mr. Sauer, who is based in Los Angeles. “What is deemed to be pornographic in a Bible belt state may not be deemed the same in Seattle or Los Angeles, and that’s where the conflict lies.”
Ultimately, the U.S. Supreme Court put a stop to the confusion when it declined to review Ms. Muccio’s free speech appeal last month, allowing the criminal case against her to proceed.
“Children who on their own initiative take pictures of one another or themselves is not child pornography,” Mr. Hobach said. “What constitutes pornography is the exploitation by adults of children’s naked photos or videos.”
