Sexting could be considered child porn.
Sexting could be considered child porn. JAG IMAGES/getty

In a ruling issued today, the Washington State Supreme Court has upheld the conviction of a 17-year-old who sent a dick pic. The court found that state law allows him to be convicted for distributing child porn, even when the photo he sent was of himself.

Legal advocates, including lawyers for the American Civil Liberties Union of Washington, raised concerns that the ruling could make it possible for prosecutors to charge sexting teens with crimes that will follow them for the rest of their lives.

The case in question dates back to 2013. That year, a 17-year-old boy named texted an unsolicited photo of his penis to a 22-year-old woman who previously worked for his mother. The teenager, who has Asperger’s syndrome, also sent her a text that said “Do u like it babe? It’s for you. and for Your daughter babe-Sent From TextFree!” The woman reported the texts and a series of harassing phone calls to the Spokane County Sheriff's Office. When a deputy approached the teen, he admitted to taking and sending the photo of his penis and to calling and texting the woman, who is identified in court documents as T.R. (The Stranger is not publishing the teen's name because he was a minor when he sent the photo leading to child porn charges.)

Prosecutors then convicted the teen (who was already on the sex offender registry for another case) of a felony under Washington's law against "dealing in depictions of a minor engaged in sexually explicit conduct." In other words: child porn. Even without his prior case, that conviction would put the teen on the sex offender registry, according to the ACLU of Washington.

The teenager's lawyers appealed his case, first to the Court of Appeals, then to the state Supreme Court.

In an amicus brief to the Supreme Court, the ACLU of Washington, Columbia Legal Services, TeamChild, and the Juvenile Law Center argued that upholding the teen's conviction is a "strained and erroneous interpretation" of child porn laws that "would jeopardize thousands of minors across the state by criminalizing increasingly common and normative adolescent behavior."

The groups said the teenager's conviction runs counter to the intent behind the law, which is to protect children from exploitation, not convict them for taking pictures of their own bodies. They also argued the conviction violated free speech rights.

In the majority decision today, six supreme court justices emphasized that the teen's case did not involve two teens consensually sexting each other and said they therefore would not consider those types of situations. They said the legislature intended to “destroy the blight of child pornography everywhere, from production of the images to commercial gain" and that includes teens who take pictures of themselves.

But ACLU spokesperson Doug Honig says even though the court tried to sidestep consensual sexting, its decision "leaves the door open for prosecutors to go after any teens who sext." Nick Allen, an attorney with CLS's Institutions Project, agreed that the decision "definitely allows for it at this point."

In a dissenting opinion, three justices said the majority's interpretation of the law "will produce absurd results."

"It means that a child who texts explicit depictions of himself or herself can be punished more harshly than an adult who does exactly the same thing," reads the dissent, written by Justice Sheryl Gordon McCloud and also signed by Justices Steven González and Mary Yu. "I can't believe the legislature intended that result. It means that a 12-year-old girl who is groomed or lured into taking and then texting explicit depictions of herself to an adult can be prosecuted for succumbing to that grooming. I can't believe the legislature intended that result."

The decision also "conflicts with what advances in adolescent behavioral and neuroscience research inform us: that such a punitive approach to behavior modification in juveniles is not effective in preventing future offenses."

Because of his Asperger's diagnosis, the teen "is a prime example of someone who would benefit more from treatment and specialized services regarding appropriate social behavior than from incarceration or the social isolation of registering as a sex offender," McCloud writes.

By interpreting the law to cover even children who take their own photos, McCloud writes, "we are subjecting all children," even those who consensually sext another child, "to felony prosecution."

And the results of that prosecution, including difficulty finding work or housing, can last a lifetime.

"The consequences of a conviction, including registry, only set up these youth for future harms," said CLS's Allen, "when really one should be looking to protect them, particularly in the context of this statute."