A 17 year-old Virginia teenager who is under investigation for sending a consensual sext to his 15-year-old girlfriend may be forced to have an erection in front of police as evidence in the case.
The boy, who the Washington Post will not identify for privacy reasons, is being charged with two felonies — one for possession of child pornography (sexts from his girlfriend) and one for manufacturing child pornography (taking video of himself). He faces time in prison, as well as permanent placement on the sex offender registry.
Police have already taken photos of the boy’s genitals as a part of their investigation, his lawyer told the Post. But they want to bring the teen to the hospital and inject him with something that will force an erection, to compare his erect penis to that in the video found on his phone.
University of Pennsylvania law professor David Rudovsky, who specializes in invasions of privacy by police, doubts that there is legal standing for police to pursue such measures.
“In my view, it’s not [a legal search] for this reason: Normally the police can get a warrant to conduct a search if they have probable cause that it will find evidence they can use in criminal trial,” Rudovsky said. “What the courts have said in a number of situations is that even if there’s some cause to believe that the procedure might lead them to evidence, where it involves a serious intrusion of personal dignity and privacy, you have to balance that with the nature of the intrusion.”
Rudovsky cited specifically a case, Winston v. Lee, in which police sought to extract a bullet from a man’s body to use it as evidence that he had been involved in criminal activity. Ultimately, the Supreme Court ruled that such an invasion was unreasonable, citing the fourth amendment’s guidance on search and seizures.
“It seems to me that this case is similar to that one,” Rudovsky said. Taking pictures of a boy’s erection is “too invasive in terms of his personal dignity… therefore the police need to have good reason, it needs to be a serious case and they need to have need for this evidence. I don’t think they have either.”