The Washington State Supreme Court recently filed an important criminal law decision (decided 6-3) which upheld the conviction of an autistic 17 year old who sent an unwanted “selfie” photo of his genitalia to a woman he was apparently trying to impress.
The court was interpreting Washington’s law against distribution of child pornography, RCW 9.68A.050. The Court determined that the law applied to a person under the age of 18 who sends a pornographic “selfie” image to another person. The court held that this was not protected speech under the First Amendment and that the law prohibiting distribution of images of minors involved in sexual conduct was not too vague to give notice of what conduct was prohibited.
The court noted that if the legislature wanted to exclude the subject of the picture from being prosecuted for sending his or her own picture to someone else, it could have done so, or could in the future amend the statute to create such an exception. The court also noted that since the autistic youth had sent his picture to a person over 21, the case did not concern “sexting” between two teenagers.
The autistic youth’s lawyers argued that the law was not meant to criminalize behavior by minors who send sexual pictures of themselves to others, since the element of exploitation inherent in most kinds of child pornography was not present in this situation. The dissenting justices also argued that the law was not meant to be used to prosecute the person depicted in the sexual image.
The decision, State v Gray, can be found at the court’s website, www.courts.wa.gov.