State of Washington v. Gray
Supreme Court of Washington
 No. 93609-9
14 September 2017
Revised Code of Washington, 9.68A.050
Constitution of the United States, 1st Amendment
Constitution of the United States, 14th Amendment
Constitution of Washington, Article 1(3)
A 17-year-old boy electronically sent a picture of his erect penis to an adult woman. The woman contacted the police and the boy was charged and convicted of “dealing in depictions of a minor engaged in sexually explicit conduct” and sentenced to 150 hours of community service, 30 days of confinement and registered as a sex offender. The offence prohibits developing or disseminating sexually explicit images of minors. The boy was originally also charged with telephone harassment involving the same victim and two counts of indecent exposure related to separate events, but the charges were dropped during the trial process. He had previously been registered as a sex offender for separate offences. The Court of Appeal upheld the boy’s conviction and he appealed to the Supreme Court of Washington.
Issue and resolution:
Sexual exploitation. The criminalisation of teenagers under child sexual exploitation laws for taking and sending sexually explicit pictures of themselves to a non-consenting recipient does not violate their right to free expression under the US Constitution.
The court found that the language of the law was unambiguous in prohibiting dealing in depictions of a minor engaged in sexually explicit conduct. The offence is clearly defined as knowingly developing, publishing or disseminating “any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct”. The court rejected the boy’s argument that the person that commits the offence and the subject of the images must be separate people, as other sections of the law make this distinction explicit where relevant.
The court found that the prohibition did not violate the First Amendment to the US Constitution on free speech by being overbroad, as it banned only sexually explicit images of children, which do not enjoy the protection of the First Amendment.
The court found that the prohibition was not vague in contravention of the Fourteenth Amendment to the US Constitution and Article I Section 3 of the state Constitution. There are two grounds to find a law unconstitutionally vague, that it invites arbitrary and discriminatory enforcement or that it fails to provide the kind of notice that will enable ordinary people to understand what conduct is prohibited. The court considered that neither of these requirements was met.
The court refused to consider whether the law would violate the right to free expression under the First Amendment to the US Constitution by criminalising teenagers consensually exchanging sexually explicit pictures, as that was not the situation in this case.
Justice McCloud and two other justices dissented from the majority, finding that where the legislature enacts a statute designed for the protection of a class - in this case, children depicted in sexually explicit conduct - the legislature’s intent is to protect members of that class from criminal liability, unless the law expressly states the contrary. The judge interpreted the legislation so as to prevent the prosecution of a minor for disseminating pictures of himself and would have overturned the conviction.
Link to Full Judgment: