Sexting

Dick Pic Makes Teenager Guilty of Sexually Exploiting Himself, High Court Says

The Washington Supreme Court's ruling implies that adolescents who engage in consensual sexting are child pornographers.

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Colorado Film Commission

When Eric Gray was 17, he took a picture of his penis and texted it to a 22-year-old woman he fancied, asking, "Do u like it babe?" Gray, whose lack of social skills had led to a diagnosis of Asperger's syndrome, may have thought he was courting the woman. She thought he was harassing her and contacted police, who thought he was distributing child pornography. Last week, the Washington Supreme Court upheld Gray's conviction on that charge, which makes him a perpetrator as well as a victim, guilty of exploiting himself.

Although Gray's dick pic was unwelcome, this ruling implies that teenagers who engage in consensual sexting are committing felony sex crimes. Writing for the majority, Justice Susan Owens concludes that Gray's behavior fits the plain meaning of Washington's statute, which says "a person" is guilty of a Class B felony when he "knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct." The law does not say the "person" and the "minor" have to be different people.

"On its face," Owens writes, "this prohibition extends to any person who disseminates an image of any minor, even if the minor is disseminating a self-produced image. Because the statute is unambiguous, we take it on its face and find that Gray's actions are included under the statute."

Owens concedes that the law "was undoubtedly intended to address the sexual abuse and exploitation of children by adults." But she says its terms go further. "The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain," she writes. "Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray's actions." And since the First Amendment does not apply to child pornography, Owens says, the statute does not violate Gray's right to freedom of speech.

Owens seems untroubled by the fact that the same reasoning would make child pornographers out of teenagers who exchange sexy selfies, who face such charges from time to time. "We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other," she writes. "We also understand the worry caused by a well-meaning law failing to adapt to changing technology. 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."

As dissenting Justice Sheryl Gordon McCloud points out, declining to consider that scenario does not save sexting teenagers from the logic of this decision. Their actions, like Gray's, fit the literal meaning of the law. McCloud argues that the majority's interpretation gives short shrift to the legislature's intent and leads to "absurd results."

According to the legislative findings at the beginning of the chapter under which Gray was convicted, "the state has a compelling interest in protecting children from those who sexually exploit them." The findings say the goal of the law is "the protection of children from sexual exploitation" and "the prevention of sexual exploitation and abuse of children." The chapter is accordingly titled "Sexual Exploitation of Children." It makes little sense to say that a teenager who takes a picture of his own private parts is abusing or exploiting children.

"The general rule is that a statute designed for the protection of a particular class is presumed to exempt that protected class from criminal liability for their own harm," McCloud writes. She cites the U.S. Supreme Court's interpretation of the Mann Act, which applies to "any person who shall knowingly transport…any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." Even though the statute does not specify that the "person" and the "woman or girl" have to be different people, McCloud notes, the Court ruled in the 1932 case Gebardi v. U.S. that a transported woman could not be charged as a co-conspirator.

By ignoring the principle reflected in that decision, McCloud says, the majority invites unjust prosecution of minors who have not victimized anyone. The court's reading of the law, she notes, "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" and 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." She adds that teenagers who engage in "consensual sexting" with each other are likewise subject to felony prosecution and registration as sex offenders.

The implications of this decision would be less troubling if prosecutors could be trusted to show a modicum of sense and self-restraint in such cases. But they have shown in one case after another that they can't.

Correction: Justice McCloud is a woman. The pronouns have been adjusted accordingly.

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  1. “A dick pic is like your girlfriend sending you a picture of her feelings.”

    1. At a thousand words to a picture, that probably makes 6 pictures a month. Apparently, I’m not keeping up my end of the bargain.

      1. A “modicum of sense”? Precisely the contrary is necessary, so we can force every depraved pervert criminal to plead guilty. And when these youngsters resist, we should be prepared to fight them through the system, no matter how long it takes, just like we do in other areas of the law when action needs to be taken. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case? See the documentation at:

        https://raphaelgolbtrial.wordpress.com/

  2. The court is right about the plain meaning of the statute. Where it is wrong is about whether the legislature has the power to do this. Can the legislature criminalize a minor taking his own picture? I don’t think they can do that consistent with the First Amendment. I think they can criminalize a minor distributing his own photograph, though that is stupid and unjust. I do not see how they can criminalize anyone taking their own picture, no matter how salacious.

    1. Clearly the intent of the law was not to make criminals out of the children, so that plain reading of the statute should be followed by a striking down of the law as void for vagueness.

      1. You don’t strike the entire law down. If a law can be read to be constitutional, you read it that way. You just apply it in cases where doing so is constitutional.

        1. You DO strike down the whole law and force the Legislatures to write laws that stand up to judicial scrutiny. Picking parts of laws and having judges decide what parts of the law are good, etc is not only a violation of the separation of powers as they are legislating from the bench but gets us to where we are in jurisprudence today. A bunch of shitty laws including this law where the “victim” is now the “criminal”.

        2. John, the proposition that if a law can be read to be constitutional, it must be read that way, is, itself, a product of judicial activism. It works hand-in-hand with the presumption that a statute is constitutional and that one who challenges the constitutionality of a statute bears a heavy burden to prove otherwise.

          Undergirding those principles is the assumption that we must give the legislature the benefit of the doubt when our founding was, to a large extent, a repudiation of that principle.

          1. I don’t think judges out to be playing stump the chump with legislatures. If the law is unconstitutional when applied in some cases but not in others, then strike down its application when it is unconstitutional. Just because the law can’t make it illegal for someone to take a selfie, should mean that it can’t be applied to an adult photographing a minor.

            1. That is why we have volumes and volumes of law created by judges because they decide what application to use plus all the volumes of statutes.

              If you want to make it illegal for an adult to photograph a minor then say that. Of course, that makes it difficult for parents to photograph their child. Then there is the whole argument of lack of government authority anywhere in any constitution that allows government to prevent people from photographing other people.

              Judges know that legislating from the bench is a boon for their trade.

              1. The term judicial activism is, for many, a pejorative, often used to describe a court’s striking down a statute “duly enacted by a democratically elected legislature” – as if there is something truly magical, wonderful about legislation.

                From a libertarian perspective, we want judges to take a machete to legislation in order to protect individual liberty, free enterprise, and the like. That is their role – to protect liberty; it is not to protect the will of the legislature. That is good judicial activism.

                Bad judicial activism is comprised, inter alia, of concocting doctrines like the presumption of constitutionality, finding a way to make a statute constitutional, sovereign immunity, qualified immunity for the king’s men, and, of course, the balancing tests which give the government a stake in the resolution of the vindication of one’s individual liberty.

                1. If you don’t have a presumption of constitutionality, then no statute is constitutional until it’s so adjudicated. It won’t be adjudicated until it’s litigated. So if nobody litigates it, it can’t be enforced. So you’d have what amounts to a permanent restraining order against all statutes & amendments. Those seeking to enforce it would in most cases have no standing to ever get it into court either, because they have no personal stake?their job’s the same whether it’s enforced or not, & they get paid the same.

                  1. So what?

                    That’s civilization – the restraint of public sector actors who want to project power.

                2. “[W]e want judges to take a machete to legislation in order to protect individual liberty, free enterprise, and the like. That is their role – to protect liberty; it is not to protect the will of the legislature. That is good judicial activism.”

                  No no NO! Wrong wrong wrong! Bad bad DOG! The role of judges is to interpret the law as written to decide whether the defendant has broken it or not. That’s it.

                  For the most part, the judiciary is unelected; the populace has very little recourse in the event a judge takes actions with which they disagree, whereas legislators face frequent elections’ making them the branch of government most reactive to the will of the people.

                  If a law is incorrect, the voters have but to demand that their legislators amend or abolish it. The situation you describe so glowingly is exactly why the Founders considered the judicial branch the most susceptible to despotism.

                  1. How’s that theory worked out in practice?

                    Why did Madison write that he expected the judiciary to be an impenetrable bulwark against each and every legislative usurpation of liberty?

                    Democracy sucks and breeds warfare / welfare tyrannies. The Founders were far more afraid of democracy than the judiciary.

      2. I’m with you. If a law is too vague, strike it down. Try again. Actually, don’t.

    2. depicts a minor engaged in an act of sexually explicit conduct

      IMO, this is a bit key to the issue/case. I don’t know when the law was written or conceptualized but there was a time in fairly recent history (and the legal pendulum continually swings back there) when nudity itself isn’t/wasn’t considered sexually explicit conduct. It’s generally or originally how art has been distinguished from pornography.

      I haven’t seen the photo, but I’m a bit confused as to how you would conflate the two.

      1. Why do hate kids and not want to protect them?

  3. So, when a minor masturbates, that’s child rape?

    1. And murder because of killing all those semen. Its one offense per.

  4. And masturbation is sexual molestation?

    1. By the court’s logic, yes.

  5. Seventeen. That awkward age when you’re old enough to mow the lawn but too young to trim the bushes.

  6. The important thing is that a lot of law enforcement professionals got to look at this lad’s cock while protecting him from those who would victimize him.

  7. “guilty of exploiting himself.”

    Reminds me of an old song, “I’m my own grandpa”

  8. This is just more judicial nonsense.

    The War on Sex ™ has finally circled around where the kids that were supposed to be protected are being convicted of sex crimes.

    1. Washington state’s age of consent is 16, so he could have had sex or legally consented to sex but he dare not send a pic of the tool of implementation for sex. How does that make any sense? He’s not in trouble for harassment or whatever the digital version of flashing is.

  9. On its face,” Owens writes, “this prohibition extends to any person who disseminates an image of any minor, even if the minor is disseminating a self-produced image. Because the statute is unambiguous, we take it on its face and find that Gray’s actions are included under the statute.”

    Phrasing?

    1. Fluffers gotta fluff that legal mumbo-jumbo.

  10. “We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other,” she writes. “We also understand the worry caused by a well-meaning law failing to adapt to changing technology. 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 law is the law.

    1. The law also says that these judges were supposed to strike down laws as void when they are so vague as to violate the intent of the law in question. This law was not designed to make criminals out of the kids.

      That is like making someone subject to defamation for saying false and malicious things about themselves. This legal reasoning is stupid and those judges should be impeached for being stupid and not doing their jobs.

  11. I’m sure the kid sexually abuses himself regularly.

    1. “Yeah, i do it. Everyone does. You’re a liar if you say you don’t. Yeah, i use peanut butter.”

  12. Age of consent in Washington is 16. So, it would have been legal for him to show her his dick in person and then have sex with her. But if he takes a picture and texts it, he’s exploiting himself? This is insanity.

  13. There is virtually nothing a child pornographer could do to “exploit” a 17-year-old boy that would be worse than what the state will now do to him. Woodchippers, man.

  14. In other news, Reno mom reports close call with child sex traffickers: ‘Something’s not right’; her talking-head video posted to Facebook goes viral.

    “Don’t worry about what it was or wasn’t or what did or didn’t happen, because it could, and it does, happen,” she said. “Just because it didn’t happen to us that night doesn’t mean it couldn’t happen. I’d rather have me be wrong and raise awareness for this because it’s happening all over our country.”

  15. “But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us.”

    “You know, like we do with the Second Amendment.”

    1. You are confusing constitutional provisions with statutes; obviously, the framers are not entitled to the same deference as legislators.

  16. Nice trick there. The ruling judge didn’t take into acc’t the fact that the only reason kid porn doesn’t get state or federal constitutional free-speech protection is because it requires abuse of children.

    1. Bingo

      The kid was not abused, therefore it is not child pornography, therefore he does have protection vis a vis the 1st amendment.

      Why does the judge not see this? Because the judge is complicit in the prosecutor’s decision to charge a minor using a statute that clearly does not apply to punish behavior they could not otherwise punish.

      Poor schmuck probably turned down an offered lesser charge that he was also not guilty of.

  17. Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.

    Oh, I get it. It’s “comprehensive scheme” reasoning, as in Raich. Although enforcement against this individual does not curtail prod’n of child porn that enters the distrib’n chain, the statute is part of a comprehensive scheme to do so, so the judges can’t make an exception even for cases that don’t fit that fact

    The trouble w “comprehensive scheme” reasoning is that you could just re-enact the entire Wash. St. code, calling it “a comprehensive scheme to make things good in Wash.”, then say it doesn’t matter whether that’s true in any particular detail, & none of it can be ruled unconstitutional under any lack-of-legislative-power theory.

  18. It would be nice if we had a “don’t ruin people’s lives for utterly stupid reasons” clause in the constitution, but unfortunately sexual moral panics, and all their wonderfully horrific consequences, are kind of popular in this country.

    1. It would be nice if we had a “don’t ruin people’s lives for utterly stupid reasons” clause in the constitution

      Socialists here in America would be out of jobs then.

  19. “And since the First Amendment does not apply to child pornography, Owens says, the statute does not violate Gray’s right to freedom of speech.”

    And since that one doesn’t apply, there’s no need to try any of the next 7? Monty Hall must be spinning in his grave.

  20. guilty of a Class B felony when he “knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct

    An act of sexually explicit conduct. Is the very nature of being nude “an act of sexually explicit conduct’? Didn’t his lawyer fight it on those grounds? Why is this kids dick an act of sexually explicit conduct, and “David” is work of art?
    (Unless perhaps it was a cumshot or something.)

    1. People cannot catch all the people having sex with kids so they go after people with pictures, people who stay in playgrounds without kids too long, or look creepy.

      In this case, making a criminal of the dick that the criminal dick pic pictured.

  21. I can’t wait until we start prosecuting failed suicides as “attempted murder”.

  22. The Peoples Democratic Republic of Washington…

  23. Robed Wonders making themselves appear foolish……AGAIN!

  24. This has got to be some kind of sick joke. Right?

  25. The Founding Fathers, incorporated an inherent distrust in government…for a REASON!

    Over the last few decades we’ve eroded our Constitutional protections under theories of welfare and safety.

    Many Americans today, especially liberals, want us to trust our government to do the right thing.

    Riiiiiiiiight. We should have been able to trust the government not to prosecute this kid. Yet look what happened.

    This is why the Founders wanted us to distrust government. We’ve done the opposite and now we watch the country fall apart.

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