Judge denies request for Facebook records in student sexual assault trial

A Lynchburg judge Tuesday denied a request by a professor accused of sexually assaulting one of his students to access the woman’s Facebook records in an attempt to discredit her at trial.

Joshua Young Moon, 45, of Durham, N.C., was indicted in June on a charge of object sexual penetration. According to testimony at earlier hearings, Moon had been massaging the woman, a student in his spring-semester statistics course at Liberty University, after she complained about lingering pain from a September 2008 car wreck.

The woman called police after visiting Moon’s office on April 21 to finish taking a test. She testified in an earlier hearing that she accepted Moon’s offer for a brief massage that day and fell asleep during it. She testified that she found him touching her inappropriately when she awoke.

Moon was fired from Liberty University after she made the allegations.

His lawyer, Randy Trost, has argued that the woman sought favors from Moon because she was doing poorly in the course and that the touching was consensual. Those favors included the April 21 incident in which she was given extra time to complete a test.

Trost told the judge Tuesday that information she posted and exchanged on her Facebook account would show she spent the weekend before the test at the beach with friends, not diligently studying as she testified in June. He said her Facebook page would also show her back was not bothering her because she had gone rock climbing.

Assistant Commonwealth’s Attorney Rebecca Wetzel opposed the subpoena, saying the woman’s Facebook records were akin to postal service mail, e-mail and a journal since she had taken steps to make the information private, not publicly accessible. Wetzel said Trost could question witnesses during the trial if he could find someone to say the woman had been at the beach or had been rock climbing.

She also said the attempted invasion of the woman’s privacy was an effort to make the judicial process so intolerable that she would give up.

Lynchburg Circuit Court Judge Mosby Perrow said Moon’s request for all of the woman’s Facebook records from September 2008 until present was too broad. He said he would allow Trost to file a more specific request for the records.

Facebook spokesman Andrew Noyes said the company HAS created a team led by a former FBI employee to manage requests for information in criminal cases.

In the past, local prosecutors have used information from defendants’ social networking accounts to show gang membership and violent character.

“A big part of our team’s job is explaining the applicable laws and their limitations on access to Facebook user information, because we strive to respect the balance between law enforcement’s need for information and the privacy rights of citizens,” Noyes wrote in an e-mail. “As a responsible company, we adhere to the letter of these laws.”

He pointed out a recent Virginia case in which Colgan Air, a Manassas-based airline, sought a former employee’s Facebook records to show she didn’t deserve certain disability benefits because she wasn’t as badly hurt as she claimed.

A subpoena was issued, but rejected by Facebook. A deputy commissioner at the commonwealth’s Workers Compensation Commission issued a contempt citation against the company and levied a $200-per-day fine. Facebook responded by citing federal privacy laws and said it would seek an injunction if necessary.

The citation was reversed, although the woman ended up consenting to the release of the information.

Moon, who is not being jailed, is scheduled for a two-day jury trial starting Jan. 25.