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February 14, 2017

Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics

This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:

Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear.  He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.

About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit.  She introduced him to her younger sister, age 13.  This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.

The two 13-year-olds started skyping Zachary together.  Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance.  By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear.  Her face was not visible, nor were her private parts.

That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist.  Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature.  Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.

Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone.  All this, from five underwear pictures.  If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.

Instead, he took a plea bargain.  This is what prosecutors do: scare defendants into a deal.  Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.

Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender."  The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months.  "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."

As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce.  Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor.  The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....

Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.

Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry.  But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.

I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.

UPDATE:  A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above.  This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.

February 14, 2017 at 11:27 PM | Permalink

Comments

To me it sounds like a Federal case as the guidelines are so incredibly blown out if proportion on porn and drugs. But its not, just a state case with an over zealous weekend warrior prosecutor trying to pump up his chest.

What is wrong with this guys thinking, he just received the pics. Ok, on the flip side, there gas to be a lot more to this than whats in the aboce article, right.

No matter the prosecutor needs to whipped and soaked in salt water.

My .02 worth.....

Posted by: MidWestGuy | Feb 15, 2017 12:28:04 AM

Nope what needs to happen that would stop this type of criminal stupidity is for the boys family exercise their legal and moral right to walk up to this hate filled two faced prosecuted and insert a 9mm slug into their empty head

Posted by: rodsmith | Feb 15, 2017 12:55:52 AM

I do not appreciate calls to violence, rodsmith. I assume that you are just using violent rhetoric, as David Behar often does, to express your displeasure. But I hope you and David and others will generally avoid using this forum to advocate for unlawful violence against anyone.

Posted by: Doug B | Feb 15, 2017 8:34:01 AM

Sounds like the prosecutor's budget is too high. These are the sorts of punishments that undermine societal support for harsh sentencing when it is merited.

Posted by: federalist | Feb 15, 2017 9:03:15 AM

It took me a matter of seconds to Google "Zachary sex crime stafford Virgina" and locate two articles from the local Frederiscksburg, VA newspaper (the Free Lance-Star) on this story. The May 2016 article (http://www.richmond.com/news/virginia/article_5a8d59d8-dcb1-5bd4-b7b9-f8d015d541f3.html) written by the local reporter states that the Witalec (the defendant) used electronic means to "solicit a minor ... to perform in pornography." The girl's mother discovered the what her daughter was doing and called the police and a subsequent investigation of the girl's computer and Witalec's computer confirmed her version of events. Witalec was later indicted by a grand jury. According to the reporter, the indictment states that "among other things, Witalec is accused of enticing the girl to film herself posing in sexually explicit poses."

The second story (by the same reporter) (http://www.fredericksburg.com/news/crime_courts/stafford-man-pleads-guilty-in-child-solicitation-case/article_e6016f1a-83df-5376-ad4b-e0c991bc392d.html) states that Witalec attempted to set up a sexual encounter with the 13-year-old girl who he had been communication with via Skype from June to September of 2015. According to the article, the girl "became uncomfortable when Witalec began suggesting that they meet in person to have sex."

The Reason.com article appears to be based on an interview with the defendant's mom (always a reliable source for objective information...) while the local newspaper story appears to be based off court records. It would appear some of the information from these sources is in contradiction, although it also seems fairly obvious that the Reason.com article was written with a frame that is intended to insight outrage over the sentence while the local story is more a dry recollection of what was known to the reporter. I am sure there is more to the story than either source points out and as such it seems in poor taste to rush to judgment regarding the motives of any of the actors involved (especially expressing that a government official should be murdered with a handgun ... but then again this is the internet).

One can argue that there is nothing wrong with a 19 yr old soliciting erotic photos and sex from a 13 yr old via the internet. Additionally, reasonable people can disagree over what is an appropriate sentence for such conduct and what state actor(s) should ultimately be in charge of that decision. Posting this Reason.com piece without even a hint of checking its validity does a poor job at furthering any resemblance of a meaningful conversation on the subject.

Posted by: Sean | Feb 15, 2017 9:04:34 AM

I was going to say that the sentence seemed unsurprising based simply off the fact that it involved a thirteen-year-old, even before the additional information Sean brought up.

Posted by: Soronel Haetir | Feb 15, 2017 11:21:53 AM

Sean, I trust you saw that I did post an update with a link to the second local story you reference. Moreover, Reason.com is a reputable source (i.e., not a "fake news" peddler), and it is not clear that the reporting in this piece is invalid or really is in significant contradiction with the other reports. As you rightly put it, the Reason piece is design to incite outrage, but I was hoping that by flagging it an providing some brief commentary, we could have here a "meaningful conversation on the subject." Indeed, I think you have contributed just as much with your comment (though, to the extent folks think it matters, the defendant here was 17 or 18 at the time of the sexting/solicitation).

Posted by: Doug B. | Feb 15, 2017 11:59:11 AM

Thank you for the response Doug and I did notice that you updated the article almost immediately. I also noticed I mistated in my last paragraph the issue be a 19yr old soliciting a 13yr old as Witalec would have been 17 at the time. I do not know much about Reason.com but I did a quick search after reading the article and saw they were clearly a reputable organization and I understand why you took the piece as such. My frustration should have been directed at the author of the article and not at you. One of the most frustrating aspects of the issue of sentencing policy - at least to me - is the disdain for the reality of nuance. Rarely is the case ever so cut-and-dry that the offender is this lovable, socially awkward individual who was ensnared by the predatory girl. Nor is it that the offender is some reincarnation of evil who had nefarious intentions and a lack of conscience. However, the people who seem to have the loudest voices on the subject seem to represent those extremes, and since Americans seem to hate nuance, the center erodes and the issue is broken into two competing groups of fanatics. Before I make any assessment of a sentence that is handed down I need to have all of the information that the actors involved had, including the judge, prosecutor, defense attorney, etc. Any assessment I make prior to complete knowledge is therefore just a working judgment and needs to be ready to be updated when new information is gathered. I personally do not believe the piece on Reason.com helps the discussion because all it does it confirm the already held beliefs by those who belong to one group of fanatics (as can be seen by a commentor who thinks its okay to write that the prosecutor should be shot in the head).

Basically I should avoid the internet....Sorry for the tone of my original comment.

Posted by: Sean | Feb 15, 2017 12:15:04 PM

"I do not appreciate calls to violence,..."

Do you appreciate formal logic? I know you do, given your education. The contrapositive of a true assertion is always true.

Is that not a more reliable statement than the laws of physics. For example, the moon can only be located within a meter of accuracy due to unknown gravitational sources. Whereas, there is no exception to that rule of formal logic.

Do you believe liability is a substitute for violence, and for endless cycles of violent vendetta? Do you believe legal liability is an absolutely essential element of the rule of law that makes civilization possible, as well as elevating the quality of life for the entire population?

Do you believe the prosecutor has any legal liability? Do you believe that this case brings great opprobrium on the criminal justice system?

I believe there is some legal recourse in getting him fired, in filing multiple ethics complaints and driving him out of the job. I believe the state should be made to compensate the defendants by a legislative act of payment of a $million.

Say, none of those take place or will ever take place, what does your knowledge of formal logic tell you about Rodsmith's suggestion?

Posted by: David Behar | Feb 15, 2017 1:10:48 PM

The Computer Solicitation seems to fit. If he had been a year or two older, he would be facing a mandatory five years. The Distribution Child Pornography doesn't seem to fit (nor do I think it even makes sense to quantify it as possession), although they could probably have dramatically increased the mandatory time if they wanted to be even more aggressive.

Posted by: Erik M | Feb 15, 2017 1:14:33 PM

"I do not appreciate calls to violence,..."

Are you with the 8-1 majority here, or with the dissent?

http://www.scotusblog.com/case-files/cases/elonis-v-united-states/

Posted by: David Behar | Feb 15, 2017 1:19:27 PM

Prof.,

I believe it is hard to have any sort of reasonable discussion based off materials designed to be unreasonable. And the sort of omissions the Reason article presents is also why I have long viewed them as an unreliable source when it comes to criminal justice matters. Reason may not have made anything up but in this case they did not need to.

Even your statement at the end that this case is essentially one of teen sexting is deeply undermined by the additional reporting.

Posted by: Soronel Haetir | Feb 15, 2017 2:32:12 PM

Soronel: do you think it is fair to call it "teen sexting" if a 17 year old (or an 18 year old) asks a 13 year old to send him some pictures of her in her underwear? I am not saying that is all that happened in this case, but I would fairly call just these acts "teen sexting."

It is my understand that an integral part of high school "flirting" these days involves teen boys asking teen girls to send them naked pictures. Perhaps that "flirting" should be call child porn solicitation/distribution, but I am inclined to call it "teen sexting" to distinguish it from much older persons seeking/distributing pics of much younger persons.

In the end, this case helps highlight when the subtitle of the Reason article flags: "Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." So, for all its flaws, the Reason article flags a matter that merits discussion, and the one so far seems to me pretty reasonable.

Posted by: Doug B. | Feb 15, 2017 3:02:44 PM

I have not looked at all the details of the case, just what is reported in the articles but if what the articles say is accurate none of the pictures in question meet the legal definition of child pornography. Under US V Knox the standard is "lasciviousness" not whether the images can be seen as "sexually explicit". I find it difficult to conceive of how these pictures which are a girl in her underwear with no face attached can be seen as lascivious.

Note that under Knox the standard is an objective and abstract one: would an ordinary member of the community applying contemporary community standards see the image as lascivious and it is not whether the circumstances surrounding the creation of the pictures was lascivious. So even if it is true that he was sexually assertive towards the girl and solicited the pictures that is irrelevant to whether they would be lascivious.

So to me the headline of the Reason article is profoundly misleading. The pictures may meet someone's definition of "inappropriate" but they do to seem to meet the legal definition of child pornography based upon the articles description of them.


Posted by: Daniel | Feb 15, 2017 3:21:52 PM

It is not just the fact of the pictures but the characterization of the charges. The family would have one believe that the charges all stem from those five pictures when the news stories indicate there was a lot more going on.

And the way the family tries to shift blame away from their son is sickening (the "this is what prosecutors do" language). I see this as yet another case where a defendant pleads guilty because they know that the prosecutor would be able to prove the charges at trial and that the deal being offered (poor as it might seem) is still better than a post-trial outcome.

Posted by: Soronel Haetir | Feb 15, 2017 3:23:14 PM

"but they do to seem to meet the legal definition of child pornography based upon the articles description of them.

do NOT seem

Posted by: Daniel | Feb 15, 2017 3:24:36 PM

@Soronel

I agree with your point. A great deal is being made out of the pictures in this case but that is a red herring as far as I am concerned. Doug is trying to frame this as a "sexting" issue but I just don't see it. Sexting raises many thorny legal and social problems in the context of child pornography prosecutions but this particular case is a poor example in which to frame that debate. This case seems more in line with a stalking prosecution than it does a sexting issue.

In other words, the guy would be guilty of a crime even if no pictures had been exchanged.

Posted by: Daniel | Feb 15, 2017 3:38:52 PM

None may cast gaze on the Virgin Empress of China without getting beheaded.

The feminists have a way to go before matching their ancient forebears.

Posted by: David Behar | Feb 16, 2017 5:01:37 AM

At what point did we forget that teenagers have been having sex for many many many many years. Nature gave them hormones and society says they must suppress them. A 17 year old should not be treated like a predator just for wanting to meet with someone for sex. Boys mature MUCH more slowly than girls, so at 17, 13 would have been an age for a girl that would have been a good fit. When I was 15 my boyfriend was 19 (that was many years ago by the way, so no need to snoop around in my life). Now I'm not saying we should promote sex amongst teenagers, but back in the day this would have been handled between parents and even if police must be involved, why not handle it quietly, as a first offense, get the kids some psychological help and teach them about what happens to sex offenders and predators.....BEFORE WE THROW THEM TO THE WOLVES!!!

Posted by: Mary | Feb 26, 2017 12:38:22 PM

Recall the case of the court granting a search warrant to manassas pd search and force a teenage male to take a photo of privates to prove a "sexting" case also in virginia, in which the police dropped it after media outrage. In a twist, the police officer committed suicide after caught with cp.

The girl committed the same "sexting" but of course was not charged in that case with shows bias.

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