In the case of State v. E.G., E.G. had been sending harassing phone calls to T.R., a former employee of his mother. T.R. was a 22 year old mother with an infant daughter. T.R. then received two text messages: one with a picture of an erect penis, the other with the message “Do u like it babe? It’s for you. And for your daughter babe.”
T.R. reported all the above activity to the police, who tracked the telephone to E.G. When questioned, E.G. admitted it was a picture of him. E.G. was only 17 years old at the time, and was subsequently charged while still a minor with Second Degree Dealing in Depictions of Minors Engaged in Sexually Explicit Contact, plus making harassing telephone calls.
Second Degree Dealing in Depictions of Minors Engaged in Sexually Explicit Contact is defined as:
(1)(a) A person commits the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree when he or she:
(i) 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 as defined in RCW 9.68A.011(4) (a) through (e); or
(ii) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through (e).
“Sexually explicit conduct” is defined as:
Depiction 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.
At the trial level, E.G.’s defense lawyers moved to dismiss the Dealing in Depictions charge because E.G. was himself a minor, reasoning the statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied this motion. The state and defense then reached an agreed disposition, including the facts for the appellate court to review concerning whether the dealing in depictions statute properly could be applied to E.G.’s conduct as a minor.
E.G. first argued on appeal that his conduct was protected by the First Amendment’s protection of speech or expression. The court recognized that while it is inherently dangerous to regulate any form of expression, certain categories of expression do not have First Amendment protection, such as child pornography. E. G. argued a distinction based on his status as a minor: the goal of protecting minors from abuse and exploitation was not served by prohibiting “self-produced” child pornography. The court would not recognize an exemption for minors, and concluded “the First Amendment does not consider child pornography a form of protected expression.”
E.G. then argued the statute was unconstitutionally vague because it did not provide notice that sending self-produced images of one’s own genitalia to others is within the scope of the dealing in depictions statute. E.G. was, in essence, arguing that an ordinary person would not expect sending a picture of oneself to be covered.
The court held that “nothing in the text of the statute suggests there are any exceptions.” The test is whether “an ordinary person would understand the meaning of the statute.”
The Defense’s strongest argument was due to the statement of intent adopted by the Washington legislature when enacting the dealing in depictions statute that minors who have such images disseminated are victims. The defense argued it is not rational that E.G. could be both a victim of the offense and a perpetrator. Therefore, minors who send pictures should be exempted from the statute. Otherwise sexting by minors would be covered.
The court strongly rejected this argument by holding this was not a sexting case, and specifically stated it was not deciding whether a minor sending a picture of herself to a willing minor recipient would fall within the purview of the statute. The defense on appeal argued it was “absurd” for E.G. to be both a victim and a perpetrator. The court strongly disagreed by holding that “the legislature is seeking to eradicate [child pornography], whether or not the child willingly take part.”
It appeared important for the appeals court that E.G. was, at the time of the current offense, under juvenile court supervision by way of a SSODA (Special Sex Offender Disposition Alternative) for a prior adjudication of communicating with a minor for immoral purposes. He was already a registered sex offender. The court held it was quite significant that “this is not a case of innocent sharing of sexual images between teenagers.” E. G. has been in sex offender treatment and his behavior toward T.R. was not “innocent activity.”
The court reiterated that this was “not a sexting case.”
Teenagers willingly swapping sexual images was not effected by this opinion, and, indeed, the court stated that the legislature may need to address the issue of “innocent” swapping. For now, E.G.’s case seems very specific to his unusual fact pattern.
If you have a criminal matter you would like to consult with a lawyer about, please contact Jan Olson at Ellis, Li & McKinstry, PLLC at (206) 682-0565.