The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I was traveling with family last week, and will be traveling for most of this week and the next, so blogging has been and will be light (or absent). But today I had a moment, so I thought I'd pass along State v. E.G., decided last week by the Washington Court of Appeals:
E.G. began sending harassing phone calls to T.R., a former employee of E.G.'s mother. T.R. at the time was a 22-year-old mother of an infant daughter….
Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with the message, "Do u like it babe? It's for you [T.R.]. And for Your daughter babe." T.R. reported the phone calls and text messages to the police, who tracked the telephone to E.G., then age 17. He was questioned by the police and told them that it was his penis in the photograph.
E.G. was therefore charged for making the harassing calls and for "dealing in depictions of a minor engaged in sexually explicit activity"—essentially for distributing child porn of himself. "E.G. also was then currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier adjudication for communicating with a minor for immoral purposes." The prosecution and the defense reached a deal: They "stipulated to the facts of the dealing in depictions charge, stipulated to revocation of the current SSODA due to failure to make progress in treatment, and agreed to dismiss the telephone harassment count and unrelated pending counts of indecent exposure"—the indecent exposure charges stemmed from E.G. "allegedly masturbating on a bus on his way to school"—but left it to the courts to decide whether the behavior legally qualified as distributing child porn. And the Washington Court of Appeals said that it did so qualify.
1. First, here's the statute, 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 … [k]nowingly … disseminates … any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct [which includes "[d]epiction of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer"].
2. E.G. argued that the child pornography exception to the First Amendment shouldn't apply to a minor's "self-produced depictions," because "the goal of protecting minors from abuse and exploitation is not served by prohibiting self-produced child pornography." No, said the court:
However, one of the primary purposes of child pornography statutes is to restrict the distribution network for child pornography in order to eliminate the market for producing the materials. Exempting self-produced images simply affords putative child pornographers the opportunity to purchase child pornography directly from voluntary, consenting minors, or else encourages minors to produce and market their own child pornography. Such exemptions would significantly frustrate efforts to combat child pornography.
3. Amici ACLU of Washington and the Juvenile Law Center argued that the statute should nonetheless be read as excluding "minors who send pictures of themselves, thereby ensuring that sexting does not fall within the reach of the statute." The court responded that it did "not opine on whether the dealing in depictions statute would apply to a minor sending a picture of herself to a willing minor recipient," and noted "that this is not a case of innocent sharing of sexual images between teenagers. It appears, instead, to be the latest step in a campaign of anonymous harassment of T.R." But the court's reasoning pretty strongly suggests that the statute would indeed apply to consensual sexting (some paragraph breaks added):
[T]he statute simply does not bear the construction the amici would give it.
The terms of the statute are clear—"[a] person" who disseminates sexually explicit photographs of "a minor" violates the statute. Like E.G., the amici do not argue that there is any ambiguity in the terms of the statute. Instead, pointing to the statement of intent adopted by the legislature, they argue that it is not rational that E.G. can both be the victim of the offense and the perpetrator. There are a couple of problems with that argument.
Although there is no ambiguity in the statute that would require a reviewing court to construe the statute with regard to legislative intent, the amici properly nonetheless note that statutes should be interpreted to avoid absurd results. They argue that it would be absurd for E.G. to be both victim and perpetrator. We disagree….
[N]othing in the statute requires proof of any specific "victim" status as an element of the offense. Rather, child pornography per se victimizes children, which is the reason the legislature is seeking to eradicate it, whether or not the child willingly takes part. [Footnote: Even if typical sexting initially is treated as innocent activity, there is still a significant risk of harm when one of the recipients subsequently shares the images with others, whether the new recipients are peers or adults. [Studies] show that further transmission of shared images to others is a common occurrence and an easy way to misuse "innocent" sharing to victimize a minor.] The legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons….
Amici make a strong policy argument that sexting cases should not be treated under the dealing in depictions statute. The prosecutor agreed at oral argument that prosecutors typically would not charge such cases under that law. Since this was not a sexting case, this court need not weigh in on that issue now. But if this statute needs to be amended to ensure that policy—or some other statute needs to be enacted to address the problem, then the legislature is the body that must act. Amici's policy arguments are best addressed to that body.
4. The trial court sentence, which the court upheld, was time served, plus a requirement that E.G. register as a sex offender; E.G. had already been required to register as a sex offender, apparently as a result of the "communicating with a minor for immoral purposes" conviction. The sentence was apparently lighter than it otherwise would have been because E.G. suffers from Asperger's, and the court concluded that this helped explain his failure in the Special Sex Offender Dispositional Alternative program.