Petition to modify Law for Certain Offenses Under VCC OBS 3748-F9 Code 18.2-374.1

This petition will request that certain sections of the Code of Virginia be modified in an effort to level the field in the ever changing area of social media exchange and interaction between people in our commonwealth. We face some very serious challenges in how we handle certain aspects of how we allow our children to behave in the “Media Stream” and how we allow ourselves as adults to behave in our “Adult” realm. There are places on the Internet where we as adults play and where children are not allowed to play. And just as those places are there for us, there are also places where we allow our children to play and that we work diligently to keep safe for them. We have laws in place to protect our children and ourselves from those who would break the law.

We all want there to be white and black when it comes to the law and how we live by those laws, how we abide by, and how we prosecute those who violate those laws. But, as the following example will show, there are times when white gets clouded over by the black and gray confuses the law and then our beliefs and egos get in the way of the law and our interpretation of the constitutional foundations of our country and the great Commonwealth of Virginia results in a devastating outcome for one individual and that beautiful life is basically snuffed out by the irresponsible actions of one or perhaps a few. We ask that you consider the lives of your loved ones who could possibly be ruined by the actions of someone who plays a game like this. Look at the reality of the Internet where adults play sexual games and realize that someone in your family may be engaged in seeking companionship for sex online and who is doing so thinking they are legitimately engaging an adult when in reality they may be communicating with a well endowed, well seasoned, sexually active minor who, for whatever reason, is playing an adult game that could potentially ruin that adult's life forever. Times have changed and no matter how much we may wish that our children are completely innocent and protected from adult things, it simply is not possible when we allow our children access to the internet, mobile devices and computers and when parents seem reluctant to discipline their children when they do things that are damaging to their minds. Unfortunately, we must take action to protect ourselves in these times of open communications and liberal social policies across institutions of learning and parenting.

See the article cited here for further support for a change to the Virginia Code.

Christopher, Russell and Christopher, Kathryn Hope, Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape. Northwestern University Law Review, Vol. 101, p. 75, 2007; University of Tulsa Legal Studies Research Paper No. 2007-06. Available at SSRN: https://ssrn.com/abstract=964686

The following petition will; (1) Provide an example of why this petition is being submitted; (2) The codes in question; (3) What we hope is the change required shown in bold text; (4) Summary to close this petition out with a request for your support in getting this petition before the legislature for action; (5) a request that you copy this petition and paste it into a letter to your state representative to take action.

As will be shown in the following example, there are real life examples of cases where an adult mistakenly believed that a person was of age due to the actions and appearance of the youth. But our law led to an arrest, conviction and sentencing based on a law that does not address the broad application of offenses and the minimum sentencing guidelines that resulted in a life sentence.

A man in his forties has served 25 years in the US Army. He has had no prior issues with law enforcement and has had an honorable military career. This man has a child who he loves and cherishes. Though he had a marriage that did not work out he respects his ex-wife and continues to communicate with her and provide for the care of his daughter. This man owns a home and is preparing for retirement from the military.

Over the years he has dated and been a member of adult dating sites and adult sex sites as many of his friends have as well. Being a member of such sites is not illegal or nothing unusual today and there are ads on television and internet constantly for such sites. So, he has been on a particular site for several years and occasionally he will seek out a woman for sex. Still, nothing illegal or unusual here. This site requires that members provide a full vetting of their profile to verify proof of identity and age as well as payment for membership. He meets a particular woman, age 24 on there and sees that she has been a member of the site for almost 2 years and they begin to chat through texting on their phones and email. They eventually meet and have sex. They meet several times and go out om dates over a two-month period.

Suddenly he gets arrested and charged with having sex with a minor. To make a long story short, he confesses to having sex with this person before being told she was a minor. They told him he was being investigated for sexual assault so he told them his side of the story thinking he was being investigated for a bogus rape charge or something. So, he is charged with Carnal Knowledge with a Minor, Indecent Liberties with a minor, and these:

• Produce, make child porn, age <15, offender 7+ yrs. OBS-3748-F9 §18.2-374.1(B,2) 5Y-30Y (II) 5Y
• Propose sex act by communications sys. age < 15, offender 7+ yr. OBS-3702-F9 §18.2-374.3(C) 5Y-30Y (II) 5Y

The defense attorney conducts an investigation and discovers the following:

1) The young lady was a paying member of several adult sex sites for 2 years before meeting his client.

2) This young lady had nude pictures of herself on these sites to entice men to contact her.

3) She was very tall and well-endowed for a person of her age and easily passed for an adult.

4) She had contact with other men beside his client.

5) She admitted to all of this in her interview with the prosecutor.

6) This man, his client had been a member of this adult dating site for several years.

There were several counts of the two listed above, each carry a minimum of a 5-year sentence. So he was facing a minimum of 44 years if sentenced. At this point you may be asking,

“Why was this man charged if she was impersonating an adult on a site that was specifically designed for adults only?”;

and

“How was someone of her age able to get the money and the time to spend on an adult site like that?”;

and

“Where were her parents and how did they not know?”

These were all questions that went unanswered during this entire ordeal. In fact, the young lady and her parents have felt no repercussions for her actions and yet, this man sits in prison and will sit there until he is in his 70s because he believed she was of age and he believed the site that he was a paying member of.

After being denied bail and held for over a year without trial and after negotiations between his attorney and prosecutor here is what the outcome was:

The man was facing a minimum of 44 years and a maximum of 680 years if sentenced to the maximum on all charges. The prosecutor offered a plea deal of 20 years. The defendant rejected this because he felt that he was not guilty of knowingly committing a crime. Remember that this young lady had been impersonating an adult on the site where they met for 2 years before meeting this man. To clarify, the site was an adult sex site where people not only had written profiles but also exposed their bodies in sexual positions and made themselves available for sexual activities. So, the young lady was not a victim of predatory hunting or anything like that and this is a matter of record in the court. This a subject of an ongoing investigation.

Because the defendant refused the 20-year plea from the prosecutor, the prosecutor brought additional charges against the defendant. So, under advisement of counsel, here is what the defendant understood; because of the way the current law is written and the sentencing guidelines are laid out, the defendant was indeed facing a minimum of 44 years if the case went to trial because of his previous statement. However, if the prosecutor could be persuaded to rethink the additional charges and eliminate the charges that carry the minimum 5-year sentence if the defendant would plead guilty to lesser charges, perhaps the sentencing would be less. After the defense attorney met with the judge and prosecutor the decision was made to offer a plea in which the prosecutor would drop the more serious charges and the defendant would plead guilty to lesser charges. The defendant did this only because; (1) he felt he had no choice because otherwise he would be facing life in prison even though he did not feel he was guilty; (2) the defense attorney informed the defendant that he was confident that the defendant would receive less than 5 years and would probably go home the day of sentencing because of discussions he had with the judge and prosecutor.

The defendant wanted to go to trial because the code states that you are only guilty if you KNOWINGLY committed the offense and he absolutely did not know. But he was convinced by his attorney that he did not stand a chance of being exonerated. He was also convinced by his attorney that he would spend a minimum of 44 years in prison no matter what unless he accepted a plea arrangement. This is why this petition is being submitted. No man should be afraid to seek a fair trial because of the way the law is written. The defendant is still convinced of his innocence because he was fooled by a person impersonating an adult on an adult site where he should have felt safe in seeking adult companionship. Instead, he was drawn in and he accepted what should have been truth as provided by another member of the site and by the site as well. He was the victim of a hoax and an over-zealous law enforcement, prosecutor and judicial system and he received a 100-year sentence because he trusted. Even though all but 29 years were suspended he will not be set free until he is 73 years old. That is a life that should not have been stolen from him in this way.

The application of law and sentencing guidelines for the following codes do not allow for special considerations regarding the cause for the infractions, namely that the underage person may have had the primary role in the conduct of the offenses and that parental involvement may have provided guidance in the avoidance of the actions that promulgated the environment in which the law was broken. Please consider the following and sign the petition to have the Virginia State Legislature modify the language of and sentencing guidelines for the law to better define the actual application of the law and to allow the attorneys and sentencing authorities in each case to consider any special circumstances that may shine light onto the conditions under which the infractions may have occurred.

This change in both the consideration of whether to levy charges against a person, to hold a young person and their guardian equally accountable for fraud if warranted as well as current sentencing guidelines if found guilty will allow for the authorities to have some lenity in applying the law as well as sentencing to account for the extenuating circumstances rather than being held to an assumption of innocence of the proposed victim in every case involving a minor. Here is the code as currently written and will follow with a recommended modification to the code to address minors who violate the code:

A. As used in subsections C, D, and E, "use a communications system" means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communications system, the Internet, or any telecommunications, wire, computer network, or radio communications system.

B. It is 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 is 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 younger 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 his own sexual or genital parts or 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, anal intercourse, cunnilingus, fellatio, or anilingus 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 younger 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 younger 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.

1992, c. 699; 1999, c. 659; 2003, cc. 935, 938; 2004, cc. 414, 444, 459, 864; 2007, cc. 759, 823; 2013, cc. 423, 470; 2014, c. 794.

This petition recommends the following be added to the code to address special circumstances involving minors on communications systems that could cause devastating damage to an adult who innocently seeks adult companionship and who unknowingly falls prey to a minor who plays a game that can ruin the life of a person for no reason:

F. Any person under 15 years of age who uses a communication system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of impersonating a person 18 years old or older for soliciting any person he or she knows or has reason to believe is an adult 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 and that child’s guardian shall be held liable for the violation of this code and any adult who has fallen victim to this minor’s violation and who has no prior convictions of violations of this section shall not be held or charged with any violation of this section.

A. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, "child pornography" means sexually explicit visual material which utilizes or has as a subject an identifiable minor. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor.

For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.

B. A person shall be guilty of production of child pornography who:

1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or

2. Produces or makes or attempts or prepares to produce or make child pornography; or

3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or

4. Knowingly finances or attempts or prepares to finance child pornography.

5. [Repealed.]

B1. [Repealed.]

C1. Any person who violates this section, when the subject of the child pornography is a child less than 15 years of age, shall be punished by not less than five years nor more than 30 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography 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 a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section where the person is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 15 years nor more than 40 years, 15 years of which shall be a mandatory minimum term of imprisonment.

C2. Any person who violates this section, when the subject of the child pornography is a person at least 15 but less than 18 years of age, shall be punished by not less than one year nor more than 20 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by term of imprisonment of not less than three years nor more than 30 years in a state correctional facility, three years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section when he is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 10 years nor more than 30 years, 10 years of which shall be a mandatory minimum term of imprisonment.

C3. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

D. For the purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.

E. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs or where any sexually explicit visual material associated with a violation of this section is produced, reproduced, found, stored, or possessed.

1979, c. 348; 1983, c. 524; 1986, c. 585; 1992, c. 234; 1995, c. 839; 2007, cc. 418, 759, 823; 2013, cc. 761, 774; 2015, c. 709.

It is recommended that the following be added to this code to accommodate circumstances wherein a minor may produce pornographic material of themselves in an effort to be seen by adults without being enticed or forced.

For the purposes of this article and Article 4 (§ 18.2-362 et seq.) any child pornography produced by a person under the age of 18 for the purpose of displaying themselves on an adult dating site from which they have committed fraud in documenting themselves as an adult in pursuit of membership on an adult web site and for which they have a paid membership shall be guilty of violation of this section and shall fall under the jurisdiction of the Juvenile authorities for prosecution and the guardian of the person under the age of 18 shall be guilty of violation of this Section and any person over the age of 18 who falls victim to the violation of this code by the person under 18 and who has no prior convictions of violations of this section shall not be charged or prosecuted.

fifteen years of age.

A. If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony.

B. If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age who consents to sexual intercourse and the accused is a minor and such consenting child is three years or more the accused's junior, the accused shall be guilty of a Class 6 felony. If such consenting child is less than three years the accused's junior, the accused shall be guilty of a Class 4 misdemeanor.

In calculating whether such child is three years or more a junior of the accused minor, the actual dates of birth of the child and the accused, respectively, shall be used.

C. For the purposes of this section, (i) a child under the age of thirteen years shall not be considered a consenting child and (ii) "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration.

Code 1950, § 18.1-44; 1960, c. 358; 1972, c. 394; 1975, cc. 14, 15, 606; 1981, c. 397; 1993, c. 852; 2007, c. 718.

D. For the purposes of this section, any person under the age of 18 who falsely portrays themselves to be an adult for the purpose of allowing themselves to be carnally known by an adult is guilty of violating this section and their guardian shall be held accountable as if they had violated this section based on A., B., and C. above and any adult who was victim of the violation and who has no prior conviction of violation of this section shall not be charged or prosecuted.

It is further requested that the legislature appoint a special committee to review juvenile as well as adult cases where a minor was involved in enticing an adult through the internet for sex and which resulted in a guilty plea and sentence because of the way the law is written and make certain that people who have been persecuted in this way are vindicated.

In summary, it is with great concern that we feel compelled to request this change in the law to protect innocent adults from our children. It seems incomprehensible that a child could conceive of such a horrendous thing to do to someone in their community and for their parents to not step up and insist that their child made a mistake and take steps necessary to ensure their child is disciplined and learns from what they have done. This is a very real case in which a decent man has had his life ripped out from under him. He does not deserve this and hopefully he will be released soon. No person young or old should be above the law and every parent should be held accountable for the actions of their children.

I agree that the laws stated above require review and modification to address the issue and that people convicted as a result of underage fraud and who had no previous convictions of violations of this code be released.