Intrusions – Warranted and Unwarranted – to Order

You might be asking, Could the Commonwealth of Virginia really have planned to take pictures of a minor’s engorged member (having first chemically induced the engorgement)? You might also ask, if you’re a New Yorker, “could anything like that happen here?
As for the Virginia incident, the situation does seem a little murky, but the lawyer and the guardian ad litem for the minor clearly say it happened. The Washington Post has said so, as well. The Manassas (Virginia) City Police Department, the agency investigating the minor’s alleged crime (which supposedly involved ‘sexting’), did issue a press release denying the story. But after the uproar caused by the original story, the Washington Post published a Follow-up article quoting a police official as saying “We are not going to pursue it” and further stating that the police department intended to let the warrant expire. That surely would indicate that the original story was true.

It’s not surprising that the police would ultimately get cold feet in this affair, quite apart from the unpleasant publicity. Given that the accused in the Virginia case is only 17, the creation of the proposed photo – as noted by the guardian ad litem in the first Post piece – would actually appear to constitute the production of child pornography. For instance, under Virginia law ‘child pornography’ is defined as “sexually explicit visual material which utilizes or has as a subject an identifiable minor.” ‘Sexually explicit visual material’, in turn, includes any “visual representation which depicts . . . sexual excitement” in a minor. Add the fact that the whole point of the police exercise proposed here was to ‘depict sexual excitement’ in the minor defendant, et voilĂ 

However, it won’t astonish anyone familiar with Virginia that the police set out to make the picture in the first place. The term ‘trans-vaginal ultrasound‘ is still closely associated with the Commonwealth; and Just last year, Virginia made a desperate attempt – ultimately unsuccessful – to revive its law forbidding ‘crimes against nature’. (A ‘crime against nature’ would include most sex acts between two persons that cannot lead to pregnancy).

There’s no real reason why the same scenario couldn’t arise in New York, though. In fact, something somewhat similar has already happened here, as we’ll discuss below.

Section 240.40 of New York’s Criminal Procedure Law permits a court order requiring the defendant to

(i) Appear in a line-up;
(ii) Speak for identification by witness or potential witness;
(iii) Be fingerprinted;
(iv) Pose for photographs not involving reenactment of an event;
(v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto;
(vi) Provide specimens of his handwriting;
(vii) Submit to a reasonable physical or medical inspection of his body.

You’ll note that a defendant must, if ordered, “submit to a reasonable physical or medical inspection of his body.” He can also be ordered to “pose for photographs,” as long as those photographs don’t add up to a “reenactment of an event.”

People v. Ramsey, a 2006 decision out of the Yates County Court, involved both these clauses. The defendant had been ordered to let the prosecution take photographs of his privates. The prosecution expected to establish, using those photographs, that his sexual organs possessed certain ‘unique characteristics’.

Mr. Ramsey’s privates, however, turned out to be un-photographable, as they were completely hidden by rolls of fat. The court therefore ordered him to report again for photographs. A physician was also to be present at the repeat session, who “would aid in inspection and photographing by manually separating the fat layers” from Mr. Ramsey’s sexual organs.

The Ramsey court, in making its decision specifically stated as part of its rationale that “no medication will be used,” suggesting that New York judges might not be as eager as a Virginia magistrate to order the administration of a drug to induce priapism. In a ‘sexting’ case, it seems to us, it could also be argued that a photo of an engorged sexual organ would constitute a reenactment of the crime.