Minors' Nude Selfies Can Be Considered CP, Wash. Supreme Court Rules

Minors' Nude Selfies Can Be Considered CP, Wash. Supreme Court Rules
Rhett Pardon

OLYMPIA, Wash. — Minors who send sexually explicit photographs of themselves to other persons can face child pornography charges, the Washington State Supreme Court ruled on Thursday.

Attorneys for Eric Gray, who at 17 sent a selfie of his erect penis to a 22-year-old woman in Spokane, Wash., contended it was “a case of innocent sharing of sexual images between teenagers” and that the statute he was charged with — RCW 9.68A.050 — “did not anticipate minors who take and transmit sexually explicit images of themselves.”

Gray was arrested, charged and found guilty of the CP offenses after the woman complained of being harassed with texts and transmitted pics for more than a year.

Reaching the high court, the case attracted the attention of a number of groups, including the Washington chapter of the American Civil Liberties Union, which filed a joint amicus brief on Gray’s behalf, arguing that the statute is constitutionally overbroad.

In Gray’s case, the state Supreme Court affirmed, 6-3, an appellate decision that concluded the Legislature intended to eliminate all CP along the distribution chain by passing the statute Gray was found guilty of committing.  

The ruling also emphasized that because CP is not protected by the First Amendment the statute did not violate Gray’s right to free expression.

“We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other,” said Justice Susan Owens, who wrote for the majority. “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.”

Justice Sheryl Gordon McCloud, who wrote the dissent opinion, said the majority’s conclusion would produce “absurd results.”

“The majority's interpretation punishes children who text sexually explicit depictions of their own bodies to adults far more harshly that it punishes adults who do the same thing,” McCloud wrote. “It punishes children who text such depictions of their own bodies to adults even more harshly than adults who text such sexually explicit photos to children. It even punishes the child who is groomed and led into taking such photos and forwarding them to the grooming adult!”

Industry attorney Lawrence Walters of Walters Law Group told XBIZ that most states "have passed some type of 'sexting' law that provide prosecutors with an alternative when confronted with a minor who transmits self-made erotica."

"These laws often treat the activity as a misdemeanor or civil penalty that more appropriately addresses the behavior," Walters said. "While charging minors with production of child pornography remains a legal option, that seems to be a stark abuse of prosecutorial discretion in most instances.

"Children should not be punished worse than adults who engage in the same type of behavior."