You might think that the courts could make a distinction between predatory, monstrous criminal behavior and youthful, foolish ignorance. You would, apparently, be wrong.
The Volokh Conspiracy brings us news of a case out of the state supreme court in Washington which could have alarming implications down the line. After covering some of the previous case law in this area, we hear the results of State v. Gray. In it, a 17 year old boy had used his phone to take pictures of his… well, I’m sure you can guess, and sent them to someone without their consent. The boy is clearly guilty of something, but… distributing child pornography? In the view of Washington State’s highest court, apparently so.
The dissenting justices argued that the statute shouldn’t be read to apply here, because, “when the legislature enacts a statute designed for the protection of one class — here, children depicted in sexually explicit conduct — it shows the legislature’s intent to protect members of that class from criminal liability for their own depiction in such conduct.” The majority disagreed: That principle, the majority suggested, applies only to victims who are working together with (and presumably under the influence of) their victimizers, not to solo offenders such as this.
The case itself involved a 17-year-old sending “an unsolicited picture of his erect penis” to an apparently unwilling recipient, but the logic of the court’s reasoning applies even when the recipient is pleased to receive the photo. The court does say that, “because [Gray] was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation,” but I think that — given the logic of the majority opinion — the analysis would have to end up the same way; nothing in the majority’s reasoning turns on the presence of an unwilling recipient.
Unlike other forms of visual “entertainment” the possession and distribution of child pornography is not covered under free speech and is, beyond question, one of the more damaging, sickening and horrible crimes imaginable. But it’s always been my understanding that the purpose of the laws we have against this vile behavior is to protect the child being victimized. What if the child, through stupidity or poor upbringing, is the one creating the banned content and he or she is the subject of the content? Can a person actually victimize themselves?
It seems that the boy in this case clearly did something wrong. Sending a x-rated picture of himself to an unwitting (apparently adult) recipient surely constitutes some sort of harassment. Perhaps sexual harassment? But that’s a far different class of crime to have on your record than being a child pornographer.
In some ways, this case is reminiscent of the bizarre case of Levar Allen from last year. That one was originally portrayed as a story of racism due to a massive mistake by Shaun King at the New York Daily News, but it also involved a 17 year old boy and a 16 year old girl, both of whom sent naked pictures and videos of themselves back and forth. The girl was charged under a “sexting” law, but the boy was brought up on child pornography charges.
Again, if the only content being sent is comprised of images of the sender taken by themselves, isn’t some sort of “sexting” charge ( a few degrees down the scale from child porn) a more appropriate way to handle it? This seems needlessly harsh to me.