Legislators try to keep Justin Folley sexting bill alive
February 5, 2019
State legislation that would have criminalized persons in positions of trust who send sexually explicit messages to children has been defanged and no longer closes “the Folley gap,” according to the local prosecutor whose case led to the legislation.
Matt Karzen, assistant district attorney for Colorado's 14th Judicial District, prosecuted the case of Justin Folley, who was aquitted in December on 10 felony counts of sexual exploitation of a child.
A Moffat County jury heard in graphic detail about how Folley systematically groomed one of his female students — who, at the time, was 14 or 15 years old — through a series of sexually charged text message conversations that continued throughout the girl's freshman year of high school.
The prosecution also alleged Folley had solicited the student to send two explicit photos of herself to him and sent her a video of himself masturbating.
The jury was given 30 pages of screenshots detailing the exchanges — exchanges in which Folley told the victim of his desire to have sex with her, asked her "how bad" she wanted it to happen, and quizzed her as to whether she had ever masturbated.
But those messages contained no direct evidence of images or video, and as the defense reiterated during jury selection and throughout the trial, it is not against the law for an adult or a person in a position of trust to send messages of a sexual nature to a minor, so long as those messages contain words only and not images.
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The 14th Judicial District Attorney's Office could not provide copies of the alleged images or video themselves, as they had allegedly been exchanged over Snapchat, an app that automatically deletes images after a short viewing window.
It took a jury about 2 1/2 hours to acquit Folley Dec. 10.
In the wake of the acquittal, officials in Craig and Moffat County moved to pass legislation — HB 19-1030 — that would criminalize any person in a position of trust and close “the Folley gap.”
"This bill would make it unlawful for a person who is in a position of trust with a child, like a teacher or coach, to send explicit sexual communications through electronic means," said state Sen. Bob Rankin last week. "It also specifically defines a child as a person who is under the age of 18. Current statute does not cover children above the age of 15, and this bill fixes that."
Karzen said while Rankin's statement is true with regard to the original language of HB 19-1030, the bill's language has changed.
"The really frustrating thing is when I went on the state website, the version of the bill that they have up there is the original version," Karzen said. "It's not what they call a 'strike down,' which is a subsequent version that supersedes."
Indeed, the Colorado General Assembly website still had the original bill online Tuesday.
"If a 35-year-old teacher and coach has a 15 years old student and texts them a very graphic description of a sex act, if they don't request an image or do more than just describe that sex act, that is perfectly legal under the current bill," Karzen said.
On Tuesday, state Rep. Dylan Roberts (D-Steamboat Springs), who co-sponsored HB 19-1030, said he has introduced amendments to the bill that seek to close whatever gaps exist in state law that might allow another Justin Folley-type acquittal.
Roberts said his amendments create the identical crimes of “internet luring” by a person in a position of trust in cases where the victim is 15 to 17 years of age and “unlawful electronic sexual communication” by a person in a position of trust in cases where the victim is 15 to 17 years of age.
“The current version of the bill is a compromise between all stakeholders in the current political environment," Roberts said in an email. "This is a great step forward that covers a large part of online sexually predatory behavior and bridges a substantial amount of the gap and closes a large part of the existing loophole, and we look forward to continuing to work with this and future legislatures to address any remaining issues. Rep. (Matt) Soper, and I understand how damaging this conduct can be to victims and their communities and are doing our best to provide the most protection while also ensuring that a bill actually passes and is signed into law.”
Whether the bill passes remains to be seen, but Moffat County School District Superintendent David Ulrich said he's hopeful Colorado's legislature will close the Folley gap eventually.
"The state legislature will continue to work to protect minors from predatory behavior on behalf of adults in a position of trust," Ulrich said Tuesday in an email. "If not this session, I expect future legislatures to take up the issue to strengthen current law and introduce new bills to eliminate any gaps that may still exist."
Contact Clay Thorp at 970-875-1795 or cthorp@CraigDailyPress.com.