Teens who take an X-rated selfie and then text the image can be found guilty of trading in child pornography in some cases. That was the 6-3 ruling of the Washington Supreme Court on Thursday.
The case involved a 17-year-old in Spokane County who took a picture of his private parts and then texted the photo to an adult woman acquaintance with a message that the photo was for her and her daughter, who was a minor. The mother viewed the text as a form of harassment and called police.
The teen, who has Asperger’s syndrome and was already a convicted juvenile sex offender, was charged and convicted of one count of second degree child pornography and required to register as a sex offender.
The teenager appealed his case on the grounds that he was being treated as both the victim and perpetrator of the crime and that he had a First Amendment right to photograph his own body.
Writing for the majority, Justice Susan Owens said Washington law is clear: creating or disseminating sexually explicit images of minors is illegal and not protected by the First Amendment, even if it’s a selfie that would be legal for an adult to take.
“On its face, this prohibition extends to any person who disseminates an image of any minor, even if the minor is disseminating a self-produced image,” Owens wrote.
In a dissent, Justice Sheryl Gordon McCloud said the majority opinion “produces absurd results” including the potential for a more harsh punishment for a teen who sends an explicit selfie than for an adult who does “exactly the same thing.”
McCloud noted that a teenager who sends a naked selfie could go to prison for up to 10 years.
“In short, the majority’s interpretation punishes the most vulnerable participant—the depicted child—no matter what personal pressures or demons compelled the child to do it,” McCloud wrote.
In a friend of the court brief, the ACLU of Washington and several state and national child advocate groups argued the case set a dangerous precedent “by criminalizing increasingly common and normative adolescent behavior”—namely sexting.
However, the Spokane County Prosecutor’s office, in its filing with the court, argued this was not a sexting case.
“This case is one of a young man, already a convicted sex offender, who … sent an explicit photograph … as part of a pattern of harassing conduct,” the prosecution wrote.
Thursday’s decision by the Supreme Court did not contemplate whether two teenagers who consensually sext each other could be charged with child pornography. The majority opinion said that was an issue beyond the facts in this case and noted that traditionally prosecutors in Washington haven’t charged teens under that scenario.
Such cases have arisen elsewhere. In 2015 a teenage couple in North Carolina was charged with felony exploitation of a minor after police found they’d sent each other naked pictures on their phones. The couple later pleaded guilty to misdemeanor charges to avoid the risk of felony convictions and having to register as sex offenders.
In a 2016 op-ed in the New York Times, Amy Adele Hasinoff, a professor of communication at the University of Denver, argued against treating teens’ sexting as child porn. She said state laws were not keeping up with technology and, as a result, teens were in danger of running afoul of child pornography laws.
“The laws that cover this situation, passed decades ago, were meant to apply to adults who exploited children,” Hasinoff wrote. “A better solution would be to bring child pornography laws in line with statutory rape laws by exempting teenagers who are close in age and who consensually create, share or receive sexual images.”
In her majority opinion, Owens acknowledged the concern over consenting teens being prosecuted for sending naked selfies to each other.
“We also understand the worry caused by a well-meaning law failing to adapt to changing technology,” she wrote. “But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us.”
Washington state lawmakers have considered, but not passed a teen sexting law that would create an alternative to child pornography charges. According to the National Conference of State Legislatures, nearly half the states have passed laws addressing sexting by minors. Studies estimate that as many as a quarter to a third of teenagers engage in sexting.
