The Washington State Supreme Court just issued a decision in a case that will be over-simplistically referred as to a teenage sexting case. The details of the case reveal the incredible complexity in addressing child pornography and teenage “selfies” and harassment.
State v. Gray; Docket No. 93609-9; Opinion Author – Owens; joined by Fairhurst, Johnson, Madsen, Stephens, and Wiggens; Dissent Author – McCloud; joined by Gonzalez and Yu; Attorney for Petitioners – Kathleen Shea & Washington Appellate Project; Attorney for Respondents Gretchen Eileen Verhoef
Amicus Curaie: ACLU, Juvenile Law Center, Columbia Legal Services, and TeamChild
When Eric Gray was 17 years old, he sent an unsolicited picture of his erect penis to an adult woman and invited her to share it with her daughter. (this is a little confusing as the recipient was 22 and it is unclear how old her daughter would have been) Mr. Gray had previously been convicted of a separate offense because at the time of this case, he was already a registered sex offender. Mr. Gray had allegedly been harassing the woman he sent the picture to for a year with unsolicited and repeated phone calls. To further complicate matters, Mr. Gray has an Asperger’s diagnosis, it was not discussed much in the opinion, but Asperger’s is a condition that can impair an individuals understanding of societal norms.
The State dismissed the telephone harassment charge and did not charge “two counts of misdemeanor indecent exposure stemming from an unrelated incident.” (This is a short sentence that creates the impression there were more complaints regarding his behavior, likely in person).
The law at issue is RCW 9.68A.050, which prohibits developing or disseminating sexually explicit images of minors.
Appellate Court Opinion
The major question and concern is whether child pornography laws can extend to minors taking sexual selfies. The majority took a textual approach and said the statute was clear and had no exceptions for juveniles. The Majority concluded it could not create the exception in an unambiguous statute.
As noted above, a “person” is any natural person and a “minor” is merely a person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is nothing to indicate the “minor” cannot also be the “person.” Contrary to Gray’s arguments, we find that had the legislature intended to exclude the depicted minor from the definition of “person,” it would have done so as it has in other sections in this chapter. …Because the legislature has not excluded minors from the definition of “person” here, Gray was properly charged under this statute.
The Majority acknowledged the concerns of amici about the possible consequences for teens engaging in consensual sexting, but stated that those facts were not before the court:
…our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute’s plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.
The Majority also address the Dissent argument about a law not being able to be used to prosecute those who are protected by the law, i.e., not charging a woman who has been trafficked with prostitution – basically arguing that is not what happened in this case, the minor engaged in unwanted behavior when the minor sent the text. The majority noted that this issue not involve the manufacturing of pornography, i.e., a child who was trafficked for pornography is not being charged with the manufacturing of pornography that the child had no choice in creating. The Majority makes a distinction with this case in that Mr. Gray acted alone, in fact, his attention was unwanted.
First Amendment Argument
The Majority rejected the First Amendment argument stating that child pornography does not enjoy First Amendment Protections. Gray attempted to argue that because the Supreme Court has struck down a law that prohibited computer generated child pornography, because it did not involve criminal activity that his selfie should have First Amendment protection.
The majority disagreed:
We find that RCW 9.68A.050 is not overbroad. It regulates only sexually explicit images of actual children, which is speech outside the protections of the First Amendment. Because Gray transmitted such an image, his actions do not fall under First Amendment protection.
The main argument of the dissent is:
…when the legislature enacts a statute designed for the protection of one class—here, children depicted in sexually explicit conduct—it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct. … Since the legislature enacted RCW 9.68A.050 to protect those children, it necessarily follows that those children who are depicted and hence exploited are exempt from prosecution under RCW 9.68A.050 for such depictions of themselves.
The dissent goes on to say the majority’s interpretation
punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing. It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!
(superfluous exclamation point in the original).
The dissent discussed Mr. Gray’s Asperger’s diagnosis and notes that he is a “prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender.” (This neglects to acknowledge that regardless of what happened in this case, he was a registered sex offender due to a prior adjudication- the details of what led him to have the initial sex offender registry requirement are not discussed in this case. )
The other points of the dissent were discussed above through discussing the Majority’s response to their arguments.
Additional thoughts on the case
There is a idiom in the law that bad facts make made law. In some ways, that may be a bit of what happened here. This is a case where it is hard to be sympathetic to the minor. He engaged in unwanted sexual conduct. He arguably put the adult woman, who did not want his attention, in a bad position because she had child pornography on her phone. What would have happened if she had not told the police and it somehow came out that she had child pornography? Even if she tried to delete it?
The Dissent focused on the instances where “better facts” may have created opportunities to create exceptions in the law, like grooming and the claim that photos sent in connection with grooming would result in the prosecution of the child. But the ideal facts weren’t before the court, instead the instant case involved a minor who sent unwanted photos as a part of a yearlong harassment of the recipient. This is a crucial difference that would seem to create a situation that does not trigger protecting the child as a possible victim.
In our government that seeks to be a balance of powers, this case is perhaps an important trigger for our state legislature to address this issue and to do so in a more informed way than can be done through case law can do.
Here’s a link to some 2015 research on what states have done regarding sexting. Some of the things this chart included where whether the sexting law addressed issues of minors – sending or receiving, penalty diversion, penalty informal, penalty misdemeanor, penalty felony, and interestingly whether a state has a revenge porn law. It also provides the summary of information about the state’s laws and links to find the statutes. Some interesting examples are:
The two persons involved in sending and receiving the message must both be under twenty and must be within five years of age from each other. They will have to participate in an education reform program that involves a maximum of eight hours of instruction that provides information regarding the legal consequences and non-legal consequences of sexting, and the problems associated with technology and bullying.
It is a misdemeanor to create or possess a sexually expressive image without written consent of the individual. It is a misdemeanor to send sexually expressive images with the intent to harm the individual in the image who has a reasonable expectation of privacy; or after being told by the individual, parent or guardian does not consent to distribute the image.
Interestingly most of the discussion on this chart seems to address a particular issue where something occurs in a nonconsenual manner, i.e., one child has in their possession a photo of another and forwards it on in some way.
The question facing legislatures would be whether to completely remove any criminal penalties when minors send photos to each other. This issue is complicated because consent can be a complicated issue. In 2015, there was sexting scandal in two Bothell junior high schools (Canyon Park and Skyview junior highs). Girls were pressured to send photos, and any who sent a photo were pressured to send more or their initial photo would be disseminated. There was a Degrassi story line that involved a cheer team raising money by sending photos that was incredibly plausible.
There are also pressures about what couples do. “Sexting” is common enough that it has its own Wikipedia entry, which says it was included in 2012 in the Merriam-Wesbster’s Collegiate Dictionary. This Wikipedia entry also says a 2009 study (which is ancient in our evolving world of technology) claims that 4% of teens ages 14-17 have sent sexually explicit photos of themselves. Apparently there’s even a thing called “joke sexting” which may be a form of nonconsensual sexually explicit photos.
Revenge porn is definitely an issue. “Revenge porn” is when you send a sext to one person, like a significant other, you break-up (or they’re just a creep) and they forward it on to friends or even to your friends, teachers, employers, etc. Basically the first photo was consensual, but the future uses are nonconsensual.
Bottom line, sexting isn’t a simple issue. To assume that sexting is primarily photos sent in consensual manner and therefore there should not be any consequences for minors engaging in sexting is short-sighted. That being said, I’m not a fan of criminalizing minors and some of the diversion-type programs that other states have seem far more appropriate than more severe felony or sexual offense charges that could put teens on sexual registries. Perhaps if the laws can come up with some rational and ethical guidelines, they will make enough sense to youth to help them act in responsible ways, taking into consideration that no law will likely stop youth from sending sexually explicit messages to each other.
~Written by Jill Mullins on September 22, 2017