ANALYSIS OF SEPTEMBER 7, 2017 SUPREME COURT OPINION

(Posted September 7, 2017) The Supreme Court releases a single opinion today, in a criminal appeal. The case is Dietz v. Commonwealth. It involves the prosecution of a schoolteacher for using a cell phone for purposes of procuring or promoting indecent liberties with a child, one of her students. The teacher began with a series of text messages to the student’s phone that appear to be low-level flirting. They escalated later to naughtier territory, including some photos of the teacher, though those stopped short of what the law classifies as nudity.

Alas for the teacher, by the time those last messages came through, she was no longer texting with her student but with a detective who had acquired the student’s phone. Indicted for the offense I describe above, she defended on two grounds. First, she claimed that the cell-phone statute required communication with a third person, not merely with the “target” minor. Second, she claimed that since she hadn’t exposed any “sexual part” of her body in her photos, she hadn’t actually taken indecent liberties.

The trial court and Court of Appeals rejected both arguments, and today the Supreme Court agrees, affirming the conviction. Justice McClanahan, writing for a unanimous court, reasons that nothing in the statute requires contact with a third party. And the teacher undoubtedly committed an act in furtherance of the “purpose” of a plan to commit indecent liberties. This statute doesn’t require proof of a completed criminal act of indecent liberties. The purpose of the statute is, as the Court of Appeals had ruled, “to protect children from people who would take advantage of them before the perpetrator could commit a sexual assault on an actual child.”