Another officer orders sex photos deleted

Once again, Spokane County Prosecutor Steve Tucker must decide whether charges can be filed after a law enforcement officer orders deletion of sexually explicit digital photos of a teenage girl.

As with nude photos a Spokane firefighter took in February of a 16-year-old girl with whom he had sex at a fire station, authorities were unable Wednesday to recover deleted photos of a 14-year-old University High School girl.

This time, the photos were on the cell phones of two U Hi boys, ages 13 and 14. The photos reportedly showed the nude breasts of a 14-year-old girl who agreed to pose for the two classmates.

According to search warrant documents, school resource Deputy Jeff Duncan directed the boys to delete the photos Sept. 22 after determining that no crime had been committed.

Sheriff’s spokesman Sgt. Dave Reagan said Duncan reached that conclusion in consultation with sex-crime detectives who felt the case was “unprosecutable” because the photos didn’t show the girl’s face.

“I think their thinking was that, without a photo of the girl’s face, you would have to bring her in to testify that those were indeed her breasts, and nobody wanted to go there,” Reagan said.

All three students and their parents still don’t want to go there, he added.

However, Reagan said, “There was concern because of the city’s case,” in which a police detective and his sergeant were disciplined for failure to preserve the photographic evidence.

“So, erring on the side of caution, we decided to reopen the case,” Reagan said.

Detective Tom Henderson got a search warrant and seized the boys’ cell phones Tuesday. A Sheriff’s Office computer expert thought there was a “very high probability” the deleted photos could be recovered, Henderson said in court documents.

But the expert discovered Wednesday that the images were permanently lost because the cell phone batteries had gone dead.

Now, Reagan said, Henderson plans to report all the available information to the prosecutor’s office “and see if they are interested in pursuing it in any way, shape or form without the photos.”

Tucker said in July that loss of the photos firefighter Daniel W. Ross took of the 16-year-old girl Ross had sex with while on duty “was the deciding factor” in his decision not to prosecute when that case was reopened.

Police Detective Neil Gallion and his supervisor, Sgt. Joe Peterson, were suspended for two and three days, respectively, and Ross resigned.

The Ross case presented additional elements: Ross was a public employee and 19 years older than the girl with whom he had sex. But Ross’ case and that of the University High School boys both reveal a quirk of state law that allows sex with minors while prohibiting nude photos or conversations about sex.

The law says 16-year-old girls are free to have sex with adults who have no authority over them, and that children younger than that may legally have sex with one another if they are nearly the same age.

At the same time, it is illegal to communicate with a minor for immoral purposes or to have sexually explicit photographs of a minor, regardless of age.

“The law regarding sex offenses can be confusing,” Reagan said. “…You can have sex with a 16-year-old, but you can’t talk about it with a 17-year-old.”

The University High School suspects are being investigated for alleged possession of “depictions of a minor engaged in sexually explicit conduct.” There is no allegation that a sex act occurred.

“If these kids had had just plain old sex, that would have been legal,” Reagan said. “However, taking photos and keeping them is a Class C felony. Had they sent the photos to anybody, that would have been a Class B felony.”

In addition to spotlighting a legal irony, the case is another example that technology is a step ahead of law enforcement, Reagan said.

The proliferation of tiny cameras on cellular phones and other devices makes it much easier to invade people’s privacy in restrooms and locker rooms. And widely varying technology can confound officers’ efforts to gather and preserve evidence.

Reagan said sheriff’s officials recently discussed some of the legal and technical problems at his suggestion.

For example, he said, “What are we going to do about electronic photos that can be lost simply by allowing a battery to go dead?”