Legal Question in Criminal Law in Virginia

My son was involved in sexting. the girl started it and is older by two months both are 17. What can they be charged with and how will it affect his future in the armed forces?


Asked on 11/27/09, 5:25 pm

3 Answers from Attorneys

Michael Hendrickson Law Office Michael E. Hendrickson

Probably, nothing since they are of nearly the same age and nearly adults and there would appear to be shared culpability.

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Answered on 12/02/09, 5:37 pm
Michael Sprano The Sprano Law Firm, LLP

The relevant code section is 18.2-374.3. I have quoted most if below. As you will see, some sections specify that it only applies to adults (over 18) communicating with minors, and there are differing sentencing consequences depending on the age difference, but other sections simply prohibit "any person" from committing certain acts, without reference to age. Technically, he could be prosecuted if the communications at issue fit the definitions of the statute. As a practical matter, he almost certainly will not, but that may only be a result of the exercise of prosecutorial discretion. In the future, you might counsel him that if he does not want to find himself at the mercy of the leniency and understanding of a government prosecutor, it is probably safer to refrain from such communications unless the person on the other end is over 18. Another thing he wants to be careful of is if she sends him any sexually explicit pictures, technically this would be possession of child pornography. Again, as a practical matter he would almost definitely not be prosecuted under those circumstances, but that could change if he had the indiscretion to share such photos, which would constitute distribution.

18.2-374.3:

B. It shall be unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of � 18.2-370 or � 18.2-374.1. A violation of this subsection is a Class 6 felony.

C. It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person;

2. Propose that any such child feel or fondle the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;

3. Propose to such child the performance of an act of sexual intercourse or any act constituting an offense under � 18.2-361; or

4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.

Any person who violates this subsection is guilty of a Class 5 felony. However, if the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age, the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this subsection when the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age shall be punished by a term of imprisonment of not less than 10 years nor more than 40 years, 10 years of which shall be a mandatory minimum term of imprisonment.

D. Any person who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any child he knows or has reason to believe is at least 15 years of age but less than 18 years of age to knowingly and intentionally commit any of the activities listed in subsection C if the person is at least seven years older than the child is guilty of a Class 5 felony. Any person who commits a second or subsequent violation of this subsection shall be punished by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.

E. Any person 18 years of age or older who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting any person he knows or has reason to believe is a child less than 18 years of age for (i) any activity in violation of � 18.2-355 or 18.2-361, (ii) any activity in violation of � 18.2-374.1, or (iii) a violation of � 18.2-374.1:1 is guilty of a Class 5 felony.

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Answered on 12/03/09, 6:54 am
sheryl shane sheryl shane, attorney at law

I would say Mr. Sprano covered as much as one should over the internet.

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Answered on 12/08/09, 6:59 pm


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