Recently, a man in his 30s received photos of a 16-year-old coworker’s breasts via text message. He was charged under VA Code § 18.2-374.3 for use of a communication system or electronic device to lure a minor for indecent liberties (in violation of VA Code § 18.2-370). Understandably, he was distraught since any sex crime involving a minor would require him to register as a sex offender if convicted. He would also face severe penalties like years in prison and substantial fines.
He hired us to represent him because of Michelle Derrico‘s experience in defending sex crimes involving minors. We first argued that VA Code § 18.2-370 only applies to children under the age of 15, so those charges were dismissed at the preliminary hearing. The client was then indicted under several paragraphs of § 18.2-374. The Commonwealth alleged that he invited the girl to exposure her sexual/genital parts or proposed an act of sexual intercourse.
This indictment raised two issues for our defense. First, breasts are not considered to be sexual or genital parts under the statute. Second, at age 16, the girl was over the age of consent, so an actual act of intercourse would have been legal. We filed a motion for a bill of particulars, which would compel the prosecution to provide us with additional information about the charges in advance of trial – including but not limited to the facts upon which they intended to rely.
Rather than provide the information, the Commonwealth terminated the prosecution and again indicted our client for being in violation of § 18.2-374.3(D), which only applies to minors who are old enough to engage in sexual intercourse. This left the prosecution to argue that it would be legal to engage in intercourse with the girl but illegal to ask to see her breasts. We filed a motion to dismiss the indictment, arguing subsection (D) is unconstitutional. Rather than suffer the risk of having the statute struck down under their watch, the Commonwealth terminated the prosecution.
We then helped our client with the expungement process for these dismissed criminal charges. These unproven allegations cannot remain on a criminal history or publicly available document because they could still impact employment, school admittance, and more.
Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.