Legislators look into how Va. laws cover 'sexting'

State officials want to take the sex out of texting.

In addition to lecturing teenagers across the state on the dangers of sending nude or semi-nude pictures of themselves to friends via cell phones, some legislators are looking into how the state's laws cover — or don't cover — "sexting."

The pictures pose challenges for prosecutors who seek guidance in the Virginia Code. State law says some of the instances could constitute manufacturing child pornography.

But the laws were not written with naughty teenagers in mind.

"The problem is that, I don't think . . . in the whole 402-year history of Virginia did anybody ever think that a juvenile would voluntarily be taking a picture of themselves naked and giving it to somebody," said Del. David B. Albo, R-Fairfax.

"So the way the laws are written right now, if you're in possession of a naked picture of a child, you're personally guilty of child pornography."

Albo serves as chairman of the House Courts of Justice Committee and is a member of the Virginia State Crime Commission. That panel decided this month to study the state's laws and how they address what could be a growing fad of minors sending risqué pictures of themselves to friends who also are minors.

Albo warns of the potential unintended side effects of tinkering with the state's sex-crimes statutes. He supports studying what adjustments could be made, but he said he is not, as of now, advocating a change.

"You don't want to change the law and create a loophole for child molesters. So this is very, very dangerous territory to get into," he said. "Unless a legislative change is absolutely 100 percent bulletproof, then I would recommend we don't do anything."

The staff attorney for the House Courts committee also is soliciting ideas on how to cover the cases in the state's law, and he hopes to develop a template for the General Assembly to consider in next year's session.

"It's a soluble problem. I'm just not sure what approach Virginia legislators might want to take," said Robie Ingram, staff attorney with the division of legislative services.

Sen. Kenneth W. Stolle, R-Virginia Beach, co-chair of the crime commission, said the panel's members are not sure whether the current statutes adequately address the practice among teenagers who may not grasp the consequences of their actions.

Members could determine that convictions are consistent with the philosophy of the assembly, or they may recommend a new class of crimes that more appropriately address the behavior, he said.

"I don't know any member of the General Assembly who a year ago knew what sexting was," Stolle said. "I think the concern is we actually have behavior that has not been contemplated by the statutes or by the General Assembly."

Prosecutors in Chesterfield and Henrico counties say they have not brought child-pornography charges for sexting cases in their localities.

Henrico Commonwealth's Attorney Wade Kizer has said he still hasn't decided how authorities should handle such incidents, while Chesterfield prosecutors have said they are reluctant to prosecute young people for sending such material when there is no criminal intent.

"The current Virginia statutes punishing child pornography were enacted before the phenomenon of sexting existed and were never intended to apply to 12-year-olds who do stupid things without thinking about the consequences," Kizer said via e-mail.

"The difficulty arises because under the Virginia Code child pornography means sexually explicit visual material which utilizes or has as a subject an identifiable minor. Sexting falls within this definition," Kizer said.

"The problem for the General Assembly will be in fashioning a reasonable law that will deter sexting in the context of adolescents who act immaturely and without thinking that doesn't, at the same time, gut the child-pornography statute which is intended to address pedophiles."

In Hanover County, authorities investigated a case in which a teenage girl sent nude or semi-nude images of herself to others, and those who received them forwarded the photos to friends, but prosecutors decided there was insufficient evidence to bring charges.

Louisa County Deputy Commonwealth's Attorney Rusty McGuire said prosecutors have the discretion to evaluate each case on its merits. He supports the examination of state laws but said minors still need some accountability.

"I don't want kids and parents to think this is no big deal," he said. "This is a big deal because these kids are making decisions that are going to impact them down the road."

Olympia Meola is a staff writer for the Richmond Times-Dispatch.