Fairfax Criminal Defense Attorney Explains: Internet Crimes in Virginia
Computer Harassment, § 18.2-152.7:1 of the Virginia Code
The Elements:
- a person, with the intent to coerce, intimidate, or harass any person
- uses a computer or computer network
- to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act
This offense is punishable as a Class 1 Misdemeanor – up to 12 months in jail.
Unlawful Dissemination of Images, § 18.2-386.2 of the Virginia Code
The Elements:
- a person who, with the intent to coerce, harass, or intimidate
- maliciously (wrongfully) disseminates or sells any videographic or still image created by any means whatsoever
- that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image
“Another person" includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic.
- What is noteworthy about the definition set forth above, it would be an offense to depict the face of another on the naked body of some unknown person. The statute bars dissemination of persons in a state of undress whether the depiction is genuinely the person or another person when it is done with the specific intent described above.
This offense does not require, thought practically it will often be the case, Internet involvement.
If you have been charged with a computer or Internet based offense, contact George Freeman today. He is a former Fairfax County Prosecutor and is now a Fairfax Criminal Defense Attorney. He has substantial experience handling internet based offenses.
Computer Solicitation of a Minor, § 18.2-374.3
Solicitation of a Minor is a sex offense and, if convicted, will require registration on the Sex Offender and Crimes Against Minors Registry. Though this offense typically involves Internet involvement, it does not require such.
"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
What is prohibited?
It is illegal for a 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 Indecent Liberties or Child Pornography production. This conduct is punishable as a Class 6 felony – up to 5 years imprisonment.
It is also illegal for a 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
- 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;
- 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;
- propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting bestiality or incest; or
- 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
This conduct is punishable as a Class 5 felony. Enhanced Penalty - if the accused 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, five years of which shall be mandatory minimum term of imprisonment. Any person who commits a second or subsequent offense when the accused 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.
The penalties are less severe, but still likely punishable as a Class 5 felony for any person 18 years of age or older to solicit a minor who is at least 15 years but less than 18 years of age.
The “child” that is the subject of this statute does not have to be a real person. A police detective, acting the part of a child on the Internet, can constitute a child for purposes of this crime. Therefore, if you communicate with any person that tells you they are a child and discuss the topics prohibited above, you could be charged and convicted of Solicitation of a Minor.
If you have been charged with a computer or Internet based offense, contact George Freeman today. He is a former Fairfax County Prosecutor and is now a Fairfax Criminal Defense Attorney. He has substantial experience handling internet based offenses.
Identity
Identity is an element of proof in every crime; it must be proved beyond a reasonable doubt. Most often, thought not in absolute terms, it is unknown who exactly is on the other end of a text message, email, or other Internet communication. It often remains unknown unless the person on the other end tells us who they are. The police may try to arrange a meeting in which only the person involved in the communication would know to arrive; or they may execute a search warrant and try to obtain other evidence. If you believe you are being investigated for an Internet crime, contact a Fairfax Criminal Defense Attorney today to discuss your situation. Contact us today.
Venue
There are various criminal offenses in the Commonwealth of Virginia that involve, or really require, the use of the Internet. Some of those offenses are fairly minor, but some offenses are very serious with harsh penalties for those convicted. Fairly unique to Internet crimes is the issue of venue. Venue determines where a criminal offense should be tried. If a crime is committed in the Commonwealth of Virginia, the sovereign state of Virginia has subject matter jurisdiction over the offense. But venue determines which district court or circuit court has jurisdiction over the matter. Typically some portion of the offense must be committed within the territorial jurisdiction of a city or county to give a respective court jurisdiction to hear the case.
But for Internet crimes, venue can be established in a different manner. If a person sends, for example, a threatening text message from west Texas and it is received by a person in Fairfax County, venue for the criminal offense lies in Fairfax County, Virginia. This is so even though the sender never stepped foot in Virginia. And the sender may also be liable for prosecution in Texas, depending on Texas law. Further, if a person sends a threatening text message from Fairfax County and it is received by the recipient while they are in west Texas, venue still lies in Fairfax and prosecution may also take place in Texas, depending on Texas law.
If a message is sent or received in Fairfax, and sent or received in Prince William County, venue lies in both counties but the defendant can only be convicted and punished in one or the other jurisdiction because of the Double Jeopardy clause of the 5th Amendment.
If you, or a loved one, is facing prosecution for an Internet based crime, contact George Freeman. Mr. Freeman is seasoned trial attorney, Fairfax Criminal Defense Lawyer, and former prosecutor - ready to assist you today.
