OJD Week in Review: Dec. 31 – Jan. 4

Happy New Year!  We’re starting the year off with a great new podcast, a couple of training and job opportunity reminders, a new free resource and a new tip for you (just because we know you’ve been missing them for the last few weeks).

tips memeTip of the Week – Before You Plea

Talk to your client about the impacts of an adjudication.  While not as public as adult criminal convictions, juvenile adjudications may impact the following: immigration status, educational placement, housing conditions, eligibility to play sports, placement on a sex offender registry (in N.C. or other states) and others.  Always consider the long-term consequences of what may first appear to be a short-term decision.

New Resources

Before the close of 2018, we had the pleasure of sitting down with forensic psychologist Dr. Cindy Cottle, to discuss juvenile psychological development on our podcast.  In this new segment, we talk about Roper v. Simmons, what juvenile defenders should know before contacting an evaluator, the impact that involvement in our current juvenile justice system can have on the mental health of youth, and much more.  You can listen to the podcast here.

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While not exactly a new resource, we wanted to make sure everyone was aware that the School of Government’s Legislative Reporting Service (LRS) is now FREE!  This site provides legislative summaries of everything coming out of the N.C. General Assembly including filed bills, committee substitutes and amendments, floor amendments, and conference reports.  The site also offers tools to assist you in organizing the bills and reports that most interest you.  You can check it out here.

Job Opportunities

Juvenile Law Center in Pennsylvania is currently accepting applications for a Staff Attorney, who will work in a highly collegial atmosphere with attorneys, communications, development, and operations staff, and in partnership with colleagues around the state and country.  The work will include litigation, policy advocacy, public education, media advocacy, legal and non-legal writing, training, technical assistance, coordinating state or national reform efforts including organizing and facilitating meetings, and other duties as assigned.  The Staff Attorney will think strategically about opportunities to advocate for child welfare and justice systems that are developmentally appropriate, racially equitable, and supportive of youth, families and communities.  Applications will be reviewed on a rolling basis until Friday, Jan. 11.  To apply, please go here.

On Dec. 1, Indigent Defense Services (IDS) issued a Request for Proposals (RFP) in Caswell, Person, Alamance, Orange, and Chatham counties.  The current contracts for adult noncapital criminal cases at the trial level and per session court cases in those districts will expire on May 31, 2019 and renew on June 1, 2019.  The RFP (RFP #16-0002R) seeks services for adult noncapital criminal cases at the trial level, juvenile delinquency, abuse/neglect/dependency and termination of parental rights, and treatment courts.  Please note that the RFP will not seek offers for potentially capital cases at the trial level, direct appeals or post-conviction cases.  Also, the juvenile delinquency RFP will only include Caswell, Alamance, and Person counties.  The deadline for electronic offers is Feb. 15.  To access the RFP, please check here.

Training

The deadline for applications for the 2019 Juvenile Training Immersion Program (JTIP) Summer Academy is Sunday, Jan. 13.  The JTIP Summer Academy is an annual seven-day intensive training program comprised of sessions from the JTIP curriculum, developed by the National Juvenile Defender Center (NJDC) in conjunction with experts and practitioners from around the country.  It is intended for attorneys who currently defend youth in juvenile court proceedings.  The Academy is targeted at both new and experienced juvenile defenders.  New defenders will develop the skills they need to zealously represent their clients.  More experienced juvenile defenders will have the opportunity to refine their skills and enhance their effectiveness by employing defense strategies that incorporate the unique aspects of representing youth in delinquency cases.  The program is also designed to build community and equip juvenile defenders with skills they can share with colleagues in their home state.  The JTIP Summer Academy is co-hosted by the National Juvenile Defender Center (NJDC) and Georgetown Law’s Juvenile Justice Clinic & Initiative.  To apply, please find a PDF version of the application here.

Save the date!  The 2019 Regional Training for Indigent Defense: Special Issues in Complex Felony Cases will be held on March 21 at the East Carolina Heart Institute at East Carolina University in Greenville, N.C.  The training will focus on topics relevant to criminal law practitioners and is open to IDS contract attorneys and privately assigned counsel.  Participants will receive three general CLE credit hours.  Registration should open later this month.

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That is our wrap-up for the first Friday of 2019!  Please check us out on Twitter and join us on the OJD Facebook page for other news and updates throughout the week and we will have more to come soon.

OJD Week in Review: May 14 – 18

Welcome back!  This week we’ve got two new resources from NJDC in honor of Gault and the usual list of reminders for upcoming event and application deadlines.

We’d like to ask that if you know of any new defenders around N.C. please be sure to let them know about our office and also direct them to our website, the listserv,  Twitter page, and the NCOJD Facebook page.  We want to make sure we are reaching as many juvenile justice advocates as possible and ensure everyone is made aware of all of the channels we have available in the event they need assistance.  Thanks!

Also, check out the infographic below and see what traits you think match your style!

New Resource

Earlier this week, to commemorate the 51st anniversary of In re Gault, the National Juvenile Defender Center (NJDC) released two new resources, “Confined Without Cause: The Constitutional Right to Prompt Probable Cause Determinations for Youth” and “Ensuring Access: A Policy Advocacy Toolkit“.  The former argues the harms of placing children in detention and the need for children to have a probable cause determination within 48 hours, and the latter is a toolkit meant to aid defenders, advocates, state legislators and policymakers who desire to change local laws and court rules to ensure children have access to counsel.  The toolkit also acts as a companion piece to NJDC’s previous report, “Access Denied: A National Snapshot of States’ Failure to Protect Children’s Right to Counsel“, which was released last year to commemorate Gault‘s 50th anniversary, incorporating the five issue areas and recommendations from that report.

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From Around the Community

The Center for Juvenile Justice Reform and the Council of State Governments Justice Center will host the 2018 Janet Reno Forum on Monday, May 21, at  Georgetown University in Washington, D.C.  The forum will highlight strategies for restructuring juvenile justice systems to more effectively enhance public safety and improve outcomes for youth.  The event will include the presentation of the second annual Janet Reno Endowment Women’s Leadership Award, and attendees will receive a publication featuring the highlighted strategies.  Policymakers, practitioners, researchers, advocates, and other stakeholders are invited to attend.  Please register here.

The National Juvenile Justice Network will be hosting its 2018 Forum in Durham, N.C. from July 16 – 18 at the Duke University School of Law (210 Science Dr, Durham, NC 27708).  This event, co-hosted by the Youth Justice Project of the Southern Coalition for Social Justice and Duke Children’s Law Clinic, is meant to be a fun networking and training setting for juvenile justice advocates.  July 16 and 17 will be open to NJJN members only, and the final day will be open to the public.  For details on travel assistance, the current agenda, and lodging, please visit their site here.

Registration is now open for the 81st Annual National Council of Juvenile and Family Court Judges Conference.  The event this year will take place at the Hyatt Regency Denver at the Colorado Convention Center from July 22 – 25.  The conference will offer presentations/training tracks on  topics such as family law, juvenile justice, child welfare, and family violence.  This conference is judicially-focused and open to all those interested in the improvement of juvenile and family justice.  For registration and further info, please visit the NCJFCJ website here.  The early bird deadline to register ends on June 1.

81st Annual Conference

Job Opportunities

The Michigan State Appellate Defender Office (SADO) is seeking an Assistant Defender for its Juvenile Lifer Unit and will accept applications until Friday, May 25th.  The Unit is composed of seven attorneys and four mitigation specialists representing over a hundred clients where prosecutors are again seeking life without parole sentences.  The ideal candidate will have experience in death penalty phase or juvenile lifer resentencing hearings, experience in both trial and appellate courts, and experience negotiating with prosecutors, preparing mitigation for clients, and working with expert witnesses.  The project is funded through October 2019 for now, but funding will likely continue as the work will not be complete by then.  To view the full job description and see how to apply please review the complete job posting here.

The UNC School of Government is seeking a tenure-track full-time permanent assistant professor of juvenile justice and criminal law.  The selected candidate for this position will be expected “to write for, advise, plan courses for, and teach” public officials, including judges, magistrates, law enforcement, prosecutors and defenders.  Applications will remain open until the position is filled.  The expected starting date for the new hire will be July 1.  Please find the full details for the position and how to apply here.

Training

Registration is still open for the 2018 Southern Juvenile Defender Center Regional Summit.  The event will take place on June 8 and 9 at the University of South Carolina School of Law.  For further details and to register for the event, please check the Eventbrite page here.

The 2018 Defender Trial School, cosponsored by the School of Government and the North Carolina Office of Indigent Defense Services, will be held Monday, July 9, through Friday, July 13, at the School of Government on the UNC-Chapel Hill campus.  The online registration deadline will be at 5 p.m. on Monday, June 25, and interested parties may register here.  Defender Trial School participants will use their own cases to develop a cohesive theory of defense at trial and apply that theory through all stages of trial, including voir dire, opening and closing arguments, and direct and cross-examination.  The program will offer approximately 30 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit, but attendees must attend all sessions.  The Defender Trial School is open to public defenders and a limited number of private attorneys who perform a significant amount of appointed work.  The registration fee for privately assigned counsel will be $700, which includes materials, breaks, lunches and parking, however Valerie Pearce and Tucker Charns can provide info for those interested in fellowships.  For additional info, please check out the program webpage.

Registration is open for the N.C. Bar Association’s annual meeting, this year titled “The Future of Law”.   This event will be hosted at the Wilmington Convention Center from June 21 – 24.  Topics covered will include artificial intelligence, virtual reality, design thinking in the law, and the future of legal service delivery.  For further info and to register please check out the NCBA website and the event brochure.

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Please save the dates for the 2018 Parent Attorney and Juvenile Defender Conferences.  Parent Attorney Conference will be held Thursday, August 16 and Juvenile Defender Conference will be held Friday, August 17. Both conferences, cosponsored by the School of Government and the Office of Indigent Defense Services, will be held at the School of Government on the UNC-Chapel Hill campus, offer approximately six hours of CLE credit, and feature speakers from across the state.  Registration will open in mid-June with a formal announcement and full details.

Thank you for checking out this week’s wrap-up and we will bring more soon!

2017 Year in Review

Another year gone, some great milestones achieved, and the Office of the Juvenile Defender (OJD) would like to highlight a few of those accomplishments from 2017:

Legislation

This was a monumental year for juvenile justice legislation as we celebrated the 50th anniversary of In re Gault and the passage of Raise the Age in N.C.

Raise the Age: In regards to raising the age of juvenile jurisdiction, OJD met with advocates and stakeholders to develop strategies for bill passage and worked with the Administrative Office of the Courts (AOC) Legal Counsel to draft, edit, and respond to amendments to the legislation.  OJD responded to legislators and staff with questions about the legislation and we have developed a three-part plan to address the needs of defender services to absorb the increased number of cases.

Gault:  The Supreme Court’s decision in Gault granted due process rights to children, which essentially created the occupation of juvenile defenders, and due to the new legislation passed in our state, North Carolina will not be the last state to automatically treat 16- and 17-year-olds as adults.  OJD collaborated with the National Juvenile Defender Center (NJDC) and AOC to commemorate the fifty years since the Gault decision.

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As part of our campaign to raise awareness about Gault, OJD worked with NJDC to create a webpage specifically for events in N.C. related to the celebration and to bring attention to N.C.’s commitment to fulfilling the promise of Gault.  On our own website and the UNC School of Government’s blog, in collaboration with LaToya Powell, OJD co-wrote a series of blogs on the legal impact of Gault on North Carolina law.  We also attempted to rally juvenile justice advocates to petition Google to create a Gault-inspired Doodle for May 15, the official anniversary of the decades-old decision, and encouraged other community leaders to solicit the media with op-eds and offer presentations of their own, such as the Council for Children’s Rights.  We also worked with the Governor’s Office to create a gubernatorial proclamation.  On the day of the anniversary, we launched our first Twitter Town Hall event with the hashtag #Gault50NC and we attended a gala in honor of the occasion hosted by NJDC in Washington, D.C.

With the assistance of AOC, we also created a video discussing the impact of Gault and the need for Raise the Age legislation in N.C.

Contracts & Trainings

Contracts:  There were no new contracts established in 2017, however with the passage of Raise the Age, OJD plans to evaluate current contracts and observe court in all districts to determine where new contracts will be needed once the law is fully implemented.  Assistant Juvenile Defender Kim Howes has also met with contractors in different districts to address issues, brainstorm, etc.

Trainings: This year, OJD was proud to have held several successful trainings in various districts including Districts 7, 19, 8, and 1.  We had the pleasure of collaborating with the N.C. Advocates for Justice, UNC School of Government, and others once again to bring together new and veteran juvenile defenders in different lectures and interactive training activities across the state.

Direct Representation

OJD continues to provide direct representation of juvenile clients.  This has allowed our Office to observe and respond to trends in juvenile court as well as continue to have a presence in the courtroom.  OJD has represented juveniles in cases transferred from other districts and been able to identify issues for appeal and base trainings on issues that have arisen in multiple cases in various districts such as proper amendments to charges on petitions and improper dispositional levels.  Collaboration with defenders in other jurisdictions when we have juvenile clients in common has resulted in better outcomes for juveniles with petitions in multiple districts.

Outreach

This year we’ve tried to bring new life to the OJD website, encouraging more guest blogs, getting our own domain, and exploring new avenues to engage the juvenile defender community through social media.  Since last year, OJD has seen the subscriptions on our blog more than double from the 190 we initially had prior to Marcus Thompson coming on board in our new communications and office manager position.  We have also had significant growth in our audience on social media, which has been very useful in raising awareness of what our office and the North Carolina juvenile defense community aspires to do and has accomplished.  With assistance from the media team at AOC, OJD has developed a podcast, which we hope to continue to produce in order to keep all stakeholders informed.  An OJD Facebook page has also been created in order to keep stakeholders engaged and facilitate conversation about current events related to juvenile defense around the country.

New Initiatives

With the implementation of Raise the Age underway, OJD has developed a three-part plan to address the needs of defenders to absorb the increased number of cases.  This includes (1) developing statewide and local conferences, trainings, and presentations to keep defenders informed, (2) proposing a system of dedicated defenders through contracting with local defenders, and (3) consulting with public defender offices and contractors to determine the impact of potential increase in caseload.  Our office has also created a page on the OJD website with resources specifically related to Raise the Age, including summaries of the legislation and a compilation of articles, and we will update this page as more materials become available.  Additionally, OJD has been appointed to or assisted committees in response to the new legislation including the Governor’s Crime Commission, AOC JWise Attorney Access workgroup, and the new Juvenile Jurisdiction Advisory Committee created by the new law.

OJD Week In Review: Oct. 23-27

ICYMI

Last weekend, from Oct. 20-22, the National Juvenile Defender Center held its 21st Annual Juvenile Defender Leadership Summit in Albuquerque, NM.

During this year’s Summit, topics included challenging the use of electronic monitoring in juvenile court, the impact of social media, acquiring discovery, unfair fines and fees imposed on youth and their families, expunction, and education advocacy.  N.C. Juvenile Defender Eric Zogry also joined a panel alongside Joshua Dohan, director of the Youth Advocacy Division of the Committee for Public Counsel Services in Massachusetts, and Devon Lee, legal counsel for the Office of the State Public Defender in Wisconsin, to discuss the challenges and successes of juvenile defense systems in different states.

Other faculty attending the conference included Teayra Turner, project associate at the National Juvenile Defender Center, Richard Ross, a photographer, researcher and Distinguished Professor of Art at the University of CaliforniaRandee Waldman, director of the Barton Juvenile Defender Clinic at Emory University School of Law, and Justice Barbara Vigil of the New Mexico Supreme Court, among many others.  Please find the full list of materials, publications, and other resources from the event here.

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Useful Tidbits

The Bureau of Justice Statistics has released a new special report on “Federal Prosecution of Commercial Exploitation of Children.”  This report examines cases prosecuted in the federal criminal court system between 2004 to 2013 and includes offenses related to the possession and production of child pornography and child sex trafficking.

The National Juvenile Justice Network has released a new policy platform which provides recommendations on improving relationships between law enforcement and youth of color.  The recommendations in this document include ending the militarization of law enforcement, racial profiling, and policies on use of force.  The full article can be found here.

SYJ

Strategies for Youth (SFY) has provided two new resources in its October newsletter.  The first of these resources, “The Parent Checklist“, is a tool that has been updated to address how school resource officers (SRO) are trained to handle and informed of the conditions of students with special needs and children with immigrant status.  The checklist also has sections to evaluate how parents are notified of complaints against their child, how resource officers are trained, the working agreements between law enforcement and schools, and SROs’ relationships with school faculty.  The second resource, “Be Her Resource“, is actually only referenced by SFY, but created by the National Black Women’s Justice Institute and the Georgetown Center on Poverty and Inequality.  “Be Her Resource” offers insights into the disproportionate contact between for girls of color and law enforcement in schools.

Last Chances and New Opps

We also want to offer one final reminder that applications for the NJDC Gault Fellowship are due on Monday, Oct. 30.  Tell any recent law school graduates you know to hurry and get those references, resumes, and cover letters polished!  The full details for how to apply can be found here.

NJDC has also distributed info for an opening for a full-time training chief with the Massachusetts-based Committee for Public Counsel and an opening for an assistant public defender for juvenile delinquency in the Maryland Office of the Public Defender.  The deadline for applications are Nov. 6 and Nov. 13, respectively.

Those are all of the updates we have for now, but we will be providing more news and activities on next week.  Have a great weekend!

OJD Week in Review: Oct. 9-13

This week we would like to point out some new resources, upcoming deadlines, and available job opportunities.

Fellowships and Deadlines

Early this week, the North Carolina Judicial Fellowship, a new office within the N.C. Judicial Branch which provides legal support to district and superior court judges, opened applications for several positions.  Currently, the office is accepting  applications for two associate counsel positions and six fellowships for August 2018 to August 2020.  Applications for these positions will close next Friday, Oct. 20, and Nov. 3, respectively.  On Nov. 6, the office will begin accepting applications for two other fellowships serving from January 2018 to August 2019.  The deadline for applications to this fellowship will be Nov. 17.  For more information about any of the positions or to apply, please visit here.  Questions may be directed to Andrew Brown, Director of the N.C. Judicial Fellowship at 919-890-1671 or Andrew.Brown@nccourts.org.

The Northwestern Pritzker School of Law has also opened applications for a two-year clinical fellowship beginning on Jan. 8, 2018.  This will be an immigration law fellowship in the Bluhm Legal Clinic’s Children and Family Justice Center.  The fellow will participate in community outreach, represent youth and parents in immigration court proceedings, and assist in the supervision and teaching of clinical students.  The deadline for applications will be Nov. 15 and all application materials and questions can be submitted to Uzoamaka Emeka Nzelibe.  The full description and requirements for this position can be found here.

New Resources, Fresh Updates, and Media

The National Juvenile Justice Network released a new toolkit on Tuesday which offers suggestions for advocates of juvenile justice to change the narrative of how minority youth are portrayed in the media.  The toolkit discusses social media strategies, methods for establishing relationships with media outlets, and other resources to assist in the prevention of media that criminalizes youth of color.

Campaign for Youth Justice released its newest report this week titled Raising the Bar:  State Trends in Keeping Youth Out of Adult Courts (2015-2017),  which examines states that are creating solutions to prevent children from entering the adult criminal justice system.  The report suggests that since 2005, 36 states have implemented a significant number of laws to protect youth from being treated as adults, even referencing plans to raise the age in multiple states, including North Carolina.  The report highlights the strengths and weaknesses of reform efforts in specific states as well.

CFYJ State Trends

We would also like to bring attention to several videos on Suite 6 LLC’s Vimeo channel, produced in collaboration with Campaign for Youth Justice.  These videos showcase interviews with adults who were incarcerated as juveniles and the parents of children involved in the justice system.   The interviews offer a intriguing perspective of individuals affected by the juvenile justice system.

The Office of Juvenile Justice and Delinquency Prevention has recently updated its Statistical Briefing Book to include a Data Snapshot series.  The one-page data sheets reveal stats on subjects such as characteristics/trends in delinquency cases involving Hispanic youth, the continued decline of the juvenile placement population, and frequently asked questions about commitments based on race and ethnicity.  There are also updates to several older resources.  The list for all of the new info can be accessed here.

do-dont-sign-300x296The Council of State Governments also has a great resource that was released last month titled “Do’s and Don’ts For Reducing Recidivism Among Young Adults in the Justice System“.  The document is a concrete and concise list outlining the best strategies for policymakers and leaders in juvenile justice to improve the outcomes for youth involved in the justice system.

And that is all there is for this week!  Juvenile justice advocates are always welcome to lend their voices to our blog or podcast, and don’t be shy about leaving comments and questions for us on our social media pages as well.  We want to have conversations with you all!  We will continue to provide more updates to the news above and other events as they arise, so please be sure to check out our website, Facebook, and Twitter frequently.  And as always, thanks for all that you do!

OJD Joins Facebook!

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It is our pleasure to announce that as of yesterday the Office of the Juvenile Defender is now on Facebook!  We have heard suggestions from the N.C. juvenile defender community and we have finally created a page for people to have discussions, share their own posts, and leave questions and concerns for us through Facebook now.  We encourage everyone to please like and follow us now at https://www.facebook.com/NCOJD!

Advising Juveniles of the Consequences of Sexting by Guest Blogger Lama Sinno

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I tell my colleagues on a weekly basis that I am so glad that I grew up in the pre-smartphone era.  There is no telling how much trouble I would have gotten into if I had access to as much technology as our youth do today.  Raging hormones, impulsivity and the angst of just being a teenager coupled with a smartphone is a recipe for disaster.  Imagine your younger self and the pictures, memes and uncensored opinions you could have shared with the world via Facebook, Instagram, Kik, WhatsApp and Snapchat.  I realize as I type this that some of you reading this did have smartphones when you were teenagers…  So forgive me for sounding like your Grandma.  This piece really should be called “What Your Grandma Would Tell You About Using Your Smartphone”.  I think she would say, “Put that phone away!” and “Why would you take a naked picture of yourself!”.  It is becoming a regular occurrence to see a teenager charged for obtaining or sharing nude photos.  It is ridiculously easy to share these photos, which can then be saved or forwarded to someone else or posted on someone’s social media account.

North Carolina does not have a specific “sexting” law as some other States do.  North Carolina prosecutes sexting, for the most part, under pornography statutes.  It is a crime in North Carolina to share inappropriate, or obscene, photos.  We can agree that everyone has their own definition of what is inappropriate or obscene.  The State of North Carolina defines obscenity in NCGS § 14-190.1(b) as material which:

(1) depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) lacks serious literary, artistic, political, or scientific value; and

(4) as used, is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

Sexual Conduct, referenced in subsection (1) above, is defined in NCGS § 14-190.1(c) as:

(1) Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or

(2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or

(3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.

The dissemination of obscenity is unlawful and is a Class I felony.  How do we judge obscenity?  Subsection (d) gives us some guidance:

(d) Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences. NCGS § 14-190.1(d).

I have used this section to mitigate the seriousness of sexting to prosecutors- who is the audience for these photos and are these just kids flirting with each other?  I advise my clients- If you wouldn’t want your Grandma to see it, don’t share it!

In addition to prosecution under the obscenity statute described above, I am regularly seeing charges under NCGS §14-190.5A, Disclosure of Private Images, also known as the Revenge Porn Statute.  This is a new statute, enacted in 2015, which applies when parties are in a personal relationship.  Personal relationship is defined in NCGS §50B-1(b), and includes persons of the opposite sex who are or have been in a dating relationship.  The statute also defines dating relationship as one in which “the parties are romantically involved over time and on a continuous basis during the course of the relationship,” but does not include casual acquaintances or ordinary fraternization between people in a social or business setting.  NCGS §50B-1(b).  In my opinion, the definition leaves a lot of room open for argument as to whether your client was in such a relationship.

A person is guilty of disclosure of private images if all of the following apply:

(1) The person knowingly discloses an image of another person with the intent to do either of the following:

  1. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
  2. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4) The person discloses the image without the affirmative consent of the depicted person.

(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.  NCGS §14-190.5A(b)

The statute defines reasonable expectation of privacy in NCGS §14-190.5A(a)(5) as when the depicted person consented to the disclosure of the image with in the context of the personal relationship and reasonably believes the disclosure will not go beyond that relationship.  Is it ever reasonable to believe that images on a smartphone will be kept private?  Maybe.  But maybe we should advise our clients that there’s no guarantee of that.  Please advise your clients to permanently delete any inappropriate or obscene photos or videos of their former significant others/ dating partners/ love interests.  Under no circumstances should these private images be shared with anyone else.  Getting even with your former flame can get you a felony conviction.  In juvenile court, it will likely get you probation and sex offender specific counseling.

An important note for Juvenile Defenders- the statute treats offenders under the age of 18 more leniently- the first offense is a Class 1 misdemeanor.  A second or subsequent offense, however, is a Class H felony.  NCGS §14-190.5A(c).

A recent case of mine involved a client who positioned his smartphone so as to snap a photo under his teacher’s skirt as she walked by.  The photo was sent to two other boys and a parent reported it to school authorities.  This young man, who had just turned 18, was a straight “A” student and had no experience with the court system.  He was charged with the Class I Felony of Peeping- Secretly Using A Photographic Imaging Device to View Another’s Body or Undergarments, NCGS §14-202(e).  More concerning is that he was also subject to sex offender registration with a conviction under this statute.  Luckily, while the behavior was completely inappropriate, the photo was not too revealing and the teacher was on board with a conditional discharge for this young man.  He was very fortunate that the prosecutor considered his youth and his reckless use of his smartphone.

Another local case involved two 16 year olds who consensually engaged in oral sex while filming the act.  The act depicted the female performing fellatio on the male.  The female appeared to be aware that the activity was being filmed.  The app Periscope, associated with Twitter, was used to film the activity.  So it was basically a live streaming movie.  The male was charged with First Degree Sexual Exploitation of a Minor, NCGS §14-190.16, a Class C felony, which carries a mandatory active sentence and sex offender registration.  The female was not charged.  I don’t agree with either charging decision.  However, it is clear that a situation in which acts are streamed live are subject to more serious charges.  Luckily, the case was resolved via a conditional discharge.  The link below describes a few popular live- streaming apps, for your information.

http://www.practicalecommerce.com/articles/122843-12-Apps-for-Live-streaming-Video

 So, what would your Grandma tell you about using your smartphone:

  1. Put that phone away!
  2. Respect other people’s privacy.
  3. Don’t take or send naked photos of yourself or anyone else.
  4. Do not video or live stream sexual acts.
  5. Anything you put on the internet can be saved, downloaded or “screenshot”. Don’t be naïve enough to believe that it will disappear.

In all seriousness though, I believe young people today are under so much more pressure socially due to the prevalence of social media and the constant sea of cameras ready to record anything with one click.  It makes me wonder if we as practitioners should advise juveniles and their parents to stay off of social media sites altogether and severely restrict smartphone usage.  But then again, that sounds like something your Grandma would say, “You and your internets!”

For more information on this topic, visit the UNC School of Government’s Criminal Law Blog, and check out the posts by Professor Latoya Powell.

In Johnston County, Lama Sinno is the new juvenile delinquency contractor, joining current contractor Aleta Ballard.  Lama grew up in Durham, North Carolina and obtained her undergraduate degree from UNC Chapel Hill in 1995.  She obtained her law degree from Campbell University in 2001.  Lama has been in private practice in Johnston County since October 2003.  She practices criminal law, represents parents and juveniles in juvenile proceedings and represents injured workers in workers compensation claims.  She lives in Clayton, North Carolina with her husband and daughter, who are also avid Tarheel fans.  She can be reached at lama.a.sinno@gmail.com, or via Facebook and LinkedIn.