Minors’ Nude Selfies Violate Child Porn Law, Wash. High Court Rules

OLYMPIA, Wash. (CN) – Minors in Washington state can face child pornography charges if they send sexually explicit photographs of themselves to another person, the state’s high court ruled Thursday.

The 6-3 decision stems from an incident involving Eric Gray, who at the age of 17 texted a photo of his erect penis to a 22-year-old woman in Spokane.

The woman, who had worked with Gray’s mother, contacted police and said she had also received a number of harassing phone calls and texts from Gray over the course of a year. Gray, who lived with his parents and has Asperger’s syndrome, had previously been required to register as a sex offender.

After police confirmed the text photo came from Gray, prosecutors charged him with second-degree dealing in depictions of a minor engaged in sexually explicit conduct in juvenile court. He was found guilty in a stipulated-facts trial.

An appeals court upheld the decision, concluding that the Legislature intended to eliminate all child pornography by passing the statute Gray was found guilty of committing. The appeals court also declined to liken Gray’s actions to “a case of innocent sharing of sexual images between teenagers.”

A number of organizations, including the Washington chapter of the American Civil Liberties Union, filed a joint amicus brief on Gray’s behalf, arguing that the statute is constitutionally overbroad.

In a 6-3 decision this week, the state’s highest court again upheld the decision to charge Gray with what amounts to a child pornography charge.

“We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other. We also understand the worry caused by a well-meaning law failing to adapt to changing technology,” Justice Susan Owens wrote for the majority. “But 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 concluded the Legislature intended the statute “to curtail production of child pornography at all levels in the distribution chain” and because child porn is not protected by the First Amendment, the statute did not violate Gray’s right to free expression.

Writing in dissent, Justice Sheryl Gordon McCloud said the majority’s conclusion would produce absurd results.

“It means that a child who texts explicit depictions of himself or herself can be punished more harshly than an adult who does exactly the same thing. I can’t believe the Legislature intended that result,” McCloud wrote.

“It means that a 12-year-old girl who is groomed or lured into taking and then texting explicit depictions of herself to an adult can be prosecuted for succumbing to that grooming. I can’t believe the Legislature intended that result.”

McCloud noted Gray’s Asperger’s syndrome, and that taking “a punitive approach to behavior modification in juveniles” rather than treatment and services is not effective in preventing future crimes.

Justices Steven Gonzalez and Mary Yu joined McCloud’s dissent.

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