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Washington Supreme Court Addresses Whether Minors Can Be Prosecuted For Taking And Distributing Sexually Explicit Images Of Themselves

Posted by Steve Karimi | Oct 19, 2017 | 0 Comments

A seventeen-year-old boy sent an unsolicited photo of his genitals to a woman. Upon receiving the picture, the woman contacted police and the defendant was charged in juvenile court with “one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.050.” The defendant, Eric D. Gray, who has Asperger's syndrome, had a prior brush with the law that required him to register as a sex offender. The picture was not the defendant's first contact with the victim. She had been receiving phone calls from a restricted number for a year prior to the photo being sent. When police questioned the defendant he admitted that he had made the calls and sent the photo and that the genitals in the photo were his. The defendant was subsequently found guilty of the offense and sentenced.

He was again required to register as a sex offender and was also given 150 hours of community service as well as “30 days confinement, and fees, before being released with credit for time served.” He subsequently appealed his case.

The first issue that the Supreme Court considered on appeal was whether RCW 9.68A.050 permits “the state to prosecute a minor for taking and distributing a sexually explicit photo of himself.”

The court first looked at “whether a ‘person' under the dealing in depictions of a minor statute can also be the ‘minor' depicted in the images.” The court analyzed the language of the statute in order to determine this question. The statute itself states, in relevant part: "‘[a] person commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the second degree when he or she . . . [kjnowingly develops,... publishes,... [or] disseminate[s] ... any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct....'"

The statute defines minor as “‘any person under eighteen years of age'” and person as “any ‘natural person,' whether an adult or a minor.'” It also defines sexually explicit conduct as “a depiction ‘of the genitals or unclothed pubic or rectal areas of any minor . . . for the purpose of sexual stimulation of the viewer.'” The court stated “[t]herefore, when any person, including a juvenile, develops, publishes, or disseminates a visual depiction of any minor engaged in sexual conduct, that person's actions fall under this statute's provisions.”

The court concluded that the defendant fell under the definitions of the statute and was therefore “properly charged . . . for his actions.'” The court stated that the defendant was a minor and a natural person under the statute and had sent the pictures for the purpose of sexual stimulation as he had asked the victim if she liked the photos of his genitalia. The court found, contrary to what the defendant argued, that the person sending the photos and the minor in the photos could be the same person and that if the legislature intended to exclude the minor in the photo in the definition of “person” it would have done so.

The court also briefly addressed the concern that this could criminalize the activities of teenagers who may be “sexting.” The court stated that “our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us.” The court stated that the defendant's actions fell within the plain meaning of the statute and they declined to analyze instances of “sexting.”

Moreover, the court found that charging Gray was within the intent of the legislature as the desire of the statute was to protect children by “‘stamping out the vice of child pornography at all levels in the distribution chain,'” including “at its inception.” The court stated that “[i]f the legislature intended to exclude children, it could do so by amending the statute.” While the court recognized that there could be exceptions in other contexts for victims of a crime, the court stated that the defendant's case was about the “distribution of a sexually explicit image to an unwilling recipient.”

The court also considered whether the statute was unconstitutionally overbroad or vague, but rejected these arguments. The court then concluded that the statute at issue, RCW 9.68A.050” “is unambiguous and anticipates Gray's actions.” The court stated that “[t]he statute prohibits any person from developing or disseminating a sexually explicit image of any minor” and the defendant “sent a sexually explicit picture of himself to an adult woman.” The court stated that the “[b]ecause Gray is a person and because he sent a sexually explicit picture of himself while he was a minor, he was properly charged under the statute.”

About the Author

Steve Karimi

Steve Karimi attended Pepperdine University School of Law. After graduation he worked as a prosecutor in Seattle where he gained valuable insight to the criminal justice system. Attorney Karimi uses his experiences as a prosecutor everyday only now he fights for the justice of those accused.


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Named a "rising star" in criminal defense by Washington Law and Politics magazine, Mr. Karimi is a former prosecutor for King County who uses his insight into prosecution strategies to protect his clients' rights in criminal court.