Is Underage Sexting Child Porn? Washington Supreme Court Says Yes

The Washington Supreme Court ruled Thursday to uphold the conviction of a 17-year-old who send a picture of his penis to a 22-year-old woman—a decision that will result in the teenager being labeled as a child pornographer.

The ruling, which was made with a 7-1 vote, reaffirmed the decision of a lower court that found the teen guilty of distributing child pornography—a decision that makes the 17-year-old both the perpetrator and the victim of the same crime. As a result of the ruling, he could face up to 10 years in prison.

The case dates back to 2013, when the man—17 years old at the time, and diagnosed with Asperger’s syndrome—took and sent a photo of his penis to a 22-year-old woman who once worked for his mother.

The photo was unsolicited and included the message, “Do u like it babe? It’s for you. and for Your daughter babe-Sent From TextFree!” (TextFree was a free messaging service that provides users with a way to send text and multimedia messages to phone numbers.)

The woman reported the texts, as well as a series of harassing phone calls that came from the teenager, to the Spokane County Sheriff's Office. When a deputy confronted the teen about the messages, he admitted to taking and sending the photos as well as calling the woman.

Following the admission of guilt, the teenage male—who was already a registered sex offender for a previous offense—was prosecuted and convicted of a felony under Washington state law that prohibits “dealing in depictions of a minor engaged in sexually explicit conduct"—a charge more plainly put as distributing child pornography.

The decision from the Washington Supreme Court was intended to “destroy the blight of child pornography everywhere, from production of the images to commercial gain," the majority said—including in cases where the children are taking pictures of themselves. The court did say the decision would not apply to underage teens sending sexual messages to one another consensually.

"We also understand the worry caused by a well-meaning law failing to adapt to changing technology," the court wrote. “The statute here is unambiguous. A 'person' is any person, including a minor. Images of a 'minor' are images of any minor. Nothing in the statute indicates that the 'person' and the 'minor' are necessarily different entities."

The ruling was derided by the American Civil Liberties Union of Washington, as well as advocacy groups for children and teens.

In an amicus brief filed by the ACLU, Columbia Legal Services, TeamChild and the Juvenile Law Center, the organizations argued that upholding the conviction would be a "strained and erroneous interpretation" of child pornography laws and "would jeopardize thousands of minors across the state by criminalizing increasingly common and normative adolescent behavior."

The loan dissenting voice on the court, Justice Sheryl Gordon McCloud, suggested the teenager would be better off being provided medical treatment and support rather than being placed in jail. "The majority, however, holds that the statute takes the punitive approach to the depicted, vulnerable victim child," she wrote. "I can't believe the legislature intended that absurdity, either."