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Law enforcement is off-kilter for seeking to induce and photograph an erection in a sexting case

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UPDATE (Late July 10, 2014): Manassas City, Virginia, police, have done the right thing by deciding to let expire the magstrate-issued search warrant ordering the inducing and photographing of a 17-year-old man’s erection.


Yesterday morning, July 9, a colleague asked whether I had read about efforts by law enforcement authorities to obtain a warrant to induce and photograph an erection in a seventeen year old man, to assist their investigation into his having allegedly sexted such an image to his girlfriend, apparently through mutually consensual sexting. My first reaction is my remaining reaction, that this is whacked out, takes child pornography prosecution beyond the farfetched edges, excessively victimizes the defendant, and fails to place reasonable limits on invading one’s sexuality. The whole matter hits all the more geographically close to home, because the case is in Prince Wiliam County, Virginia, just one county away from me, and in a courthouse where I had just appeared for a hearing earlier that morning of July 9.

It is intrusive enough for police and prosecutors to obtain and execute a search warrant to examine one’s genitals. It is beyond the pale to obtain a warrant to force such a sexual response as an erection. Before the days of erections through injection and Viagra, forcing an erection would have been an exercise in psychological and sexual intrusion all the more severe than already exists in this cse. Absent the availability of erection by injection, would the police have been permitted to have forced the suspect to obtain an erection through masturbation or viewing pornography or, worse, with a sexual surrogate against the suspect’s will? How would one even expect to get aroused when in a room with police or medical gawkers/onlookers?

Before Viagra became all the rage, many men self-injected to obtain erections, apparently often with such troubling side effects as extremely and very uncomfortably long-lasting erections. How can it be fully safe to inject anything into one’s genitals? What physician or other health professional would deign to participate in such an invasion of one’s privacy? Did the police and prosecution in this case ever think that their efforts to force an erection would not receive global ridicule? Let those ridicule floodgates stay open until law enforcement stops its efforts to obtain a forced erection.

Here are some additional thoughts:

– Particularly with injectible erections only having come to common use around two decades ago, I am not surprised that I have not found any court cases addressing the Constitutionality of a search warrant mandating an erection.

– The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures, and the issuance of search warrants without probable cause. This forced erection effort is an unreasonable search. Moreover, it goes beyond a search by requiring a human sexual response. Forcing an erection constitutes a deprivation of one’s liberty without due process, under the Fifth and Fourteenth Amendments to the United States Constitution. Also, requiring an erection violates the suspect’s Constitutional right to privacy, just as banning adult’s access to contraception violates their privacy. Griswold v. Connecticut381 U.S. 479.

– Forcing an erection messes excessively with one’s mental and sexual health. What if the defendant also has religious objections to a forced erection?

– Is the juvenile defendant’s lawyer Jessica H. Foster defending her client court-appointed? If so, do not expect that her likely paltry court-appointed fee cap is going to be lifted much, if at all, to challenge forcing an erection on her client.

– Search warrants in Virginia typically are issued by court magistrates, who are not even required to be lawyers. It is time for Virginia to place search warrant authority solely in the hands of judges.

– A forced erection may not take place without meeting the U.S. Supreme Court’s analysis in declining forcing surgery to remove a bullet in a crime suspect that allegedly was fired by his victim:

The operation sought will intrude substantially on respondent’s protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be “reasonable.” In addition, the intrusion on respondent’s privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be “reasonable” under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.

Winston v. Lee, 470 U.S. 753 (1965).

– Some of the Fourth Amendment cases that I found involving searchs of men’s genital areas follow:

— The Fourth Circuit vacated a felony drug conviction that was based on drugs obtained by a police officer’s using a knife to cut a bag of drugs that was attached to the defendant’s penis:

“Manifestly, in the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.”

U.S. v. Edwards, 666 F.3d 877 (4th Cir. 2011).

— In 2009, a federal trial court allowed the prosecutor to obtain photographs of a drug defendant’s penis, where the defense claimed he was circumsised, and therefore unable to hide contraband in his non-existent foreskin. Harrell v. Hense,  2009 WL 409875 (unreported) (C.D. Ca. Feb. 18, 2009).

— Authorities were permitted to obtain a scraping of a rape suspect’s penis, to try to match menstrual blood. Brent v. White, 398 F.2d 503 (5th Cir. 1968).

To voice your dissent against any forced erection in this case, feel free to contact the chief electd prosecutor, who is Commonwealth’s Attorney Paul Ebert, Esquire, 9311 Lee Ave., Second Floor, Manassas, Va. 20110, 703-792-6141.