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

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 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. He 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, he 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." He 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.