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Minors Can Be Convicted of Child Porn for Sending Nude Selfies, Court Rules

Last week the Washington State Supreme Court upheld the conviction of a minor under a child pornography law. Advocates say that such rulings target the victim, and only worsen the sexual exploitation of children.

Diana Tourjée

Diana Tourjée

Photo by Cindy Prins via Stocksy

On Thursday, September 14, the Supreme Court of Washington State upheld the conviction of Eric Gray, who had been found guilty on charges of distributing an image of a "minor engaged in sexually explicit conduct," according to court documents. Controversially, the minor in question was Gray himself.

In 2013, when Gray was 17 years old, he sent a photo of his erect penis to a 22-year-old woman known as "T.R.," along with another text that read, "Do u like it babe? It's for you. And for Your daughter babe." T.R. reported these messages to Spokane County Police, who were able to confirm the messages had come from Gray. (T.R. had also been receiving harassing calls for about a year, which she told police she believed were from Gray; Gray later admitted to police that he was behind both the lewd photo and the calls, according to court documents.)

Gray, who has been diagnosed with Asperger's and was previously ordered onto the sex offender registry due to an unrelated incident, was initially charged both with sending an image of a minor and for making harassing telephone calls. However, he was only convicted of sending the photo.

When Gray appealed this ruling, the appellate court found that "the legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons." He appealed once more, to the state Supreme Court, and was joined by the ACLU, the Juvenile Law Center, Columbia Legal Services, and TeamChild, a children's rights organization.

Gray's legal team argued that the state doesn't have the right to prosecute a minor for taking and distributing a photo of himself. Once again, the state disagreed, ruling 6-3 that Gray had violated the law. In the decision, Justice Susan Owens wrote, "When any person, including a juvenile, develops, publishes, or disseminates a visual depiction of any minor engaged in sexual conduct," they are in violation of the law. Because the law does not explicitly make an exception for minors, the court found that the law's authors must have intentionally omitted such language so as to allow the state to prosecute minors like Gray.

Read more: Is Teen Sexting Really a Crime?

'It makes no sense whatsoever," says Erin Williamson, the survivor care coordinator at Love146, an international organization fighting against the exploitation of children. "The idea that they're going to somehow arrest our kids out of this is ridiculous." Noting that the harassment charges against Gray were dropped, Williamson argues that the state's approach was backwards: "If [someone is] going after you repeatedly, then bring up charges on harassment... The production of child pornography, that's not the problem with that case. The problem is the harassment."

Gray and his joint-filers argued that convicting him on this specific charge could open the door for any minor who was sexting, even with another minor, to be convicted. "It's not uncommon for this generation—as much as we may disagree with it as adults—for adolescents to take images of themselves and share images of themselves," Williamson explains.

For advocates like Williamson, one of the greatest concerns is that young people may take an image of themselves and later find that image being used against them. Williamson says that such exploitation occurs far more often than society accepts, and if courts set a legal precedent of prosecuting children for taking these images, then it will become easier for people interested in exploiting children to exploit children.

The main concern, Williamson adds, is that teachers, parents, and organizations like Love146 need to be able to assure children that they can tell someone when they are being exploited—without the fear of being prosecuted themselves. "The [adults] can literally say to them, 'If you go to police, they will arrest you,' and they're right," she tells Broadly.

Gray argued that he wasn't harmed by taking and sending a photo of his penis to T.R., and thus, "because no harm was done, he should have the same right as any adult to take voluntary photographs of his own body." The court disagreed. "We do not find this argument persuasive," Justice Owens wrote.

To Williamson, the logic motivating this ruling is just another example of the way in which our society criminalizes victims. "We arrest prostitutes, we don't go after buyers. We arrest victims of trafficking, we don't go after buyers and traffickers," she says. "This is in many ways the same thing: We are turning away from the people that we should be looking at and arresting and instead we're turning towards the child."

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Washington Supreme Justice Gordon McCloud disagreed with the majority ruling. He wrote that the law "was specifically intended to protect children depicted in pornography," which means it "necessarily follows that those children who are depicted and hence exploited are exempt from prosecution." However, his minority opinion does not affect the verdict.

Justice Owens and her colleagues claimed that the prosecution of Gray was simply eliminating the distribution of child pornography at its source. "The legislature," they found, "intended to destroy the blight of child pornography everywhere."