This week, Virginia’s Supreme Court set a frighteningly low bar for enabling a conviction for taking indecent liberties with a minor, finding delivery of photos of partially-bared female breasts and fantasy talk was enough to convict Kimberlee Dietz. Dietz v. Virginia, ___ Va. ___ (Sept. 7. 2017).

What is indecent liberties? The Virginia Code defines it as follows:

“Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:

“(1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or…

“(3) 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; or

“(4) 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

“(5) Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this subsection.”

Va. Code § 18.2-370.

The Virginia Supreme Court determined that a conviction was sufficient against then-school teacher Kimberlee Dietz for sending online to her thirteen-year-old student (who was actually replaced by an undercover police officer online) some topless photos of her, with her aureolae covered. Dietz holds that whether or not the photos of her partially covered breasts were of a “sexual part” under the code, that the evidence was sufficient to convict based on the permissible conclusion that she sent the photos with lascivious intent, when considering such accompanying talk (which comes across as fantasy talk rather than proposition talk, where only proposition talk should be subject to the indecent liberties statutes) as:

“When [the student’s] house was suggested [by the student, for a tryst] Dietz’s only stated reservation was that G.S.’s mother ‘would not let that happen.’ But if they were alone, Dietz continued, she would do ‘[s]o many dirty things’ with G.S., clearly implying unlawful conduct of a sexual nature.”

Consequently, Dietz sets a low bar for what qualifies as a criminal proposal under the indecent liberties statute and antithetical to the Fourteenth Amendment’s puts a high relevance on sharing photos on partially bared female breasts in the process, where the sharing of fully bared male breasts would not have been considered adversely at all (which is Equal Protection Clause).

Virginia criminal lawyer Jon Katz has extensive experience with sex crime defense and other major criminal defense. For a confidential consultation with Jon about your case, please contact his staff at 703-383-1100.