State of Washington v. E.G.

,.

FILED
June 14, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 32354-4-111
Respondent, )
)
v. )
)
E.G.,t ) PUBLISHED OPINION
)
Appellant. )

KORSMO, J. - A juvenile was convicted of second degree dealing in depictions of

a minor engaged in sexually explicit activity for texting a picture of his erect penis to an

adult female. We conclude that the statute does cover this conduct and affirm the

juvenile court disposition.

FACTS

E.G. began sending harassing phone calls to T.R., a former employee ofE.G.'s

mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found

T.R.'s telephone number by checking his mother's business records.

Beginning in mid-2012, a male using a restricted phone number would call T.R. at

night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013,

T.R. received two text messages: one with a picture of an erect penis, and the other with

t For purposes of this opinion, the juvenile's initials are used in place of his name.
'.

No. 32354-4-III
State v. E.G.

the message, "Dou like it babe? It's for you [T.R.]. And for Your daughter babe." T.R.

reported the phone calls and text messages to the police, who tracked the telephone to

E.G., then age 17. He was questioned by the police and told them that it was his penis in

the photograph.

Shortly before his 18th birthday, E.G. was charged in the juvenile division of the

Spokane County Superior Court with one count of second degree dealing in depictions

and one count of making harassing telephone calls. The court soon thereafter entered an

order extending the juvenile court's jurisdiction. E.G. also was then currently serving a

Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier

adjudication for communicating with a minor for immoral purposes.

The defense eventually moved to dismiss the charges on two bases, including an

argument that the dealing in depictions statute could not be applied to a minor who was

also the "victim" of the offense. The trial court denied the motion and the parties

promptly reached a disposition. The parties stipulated to the facts of the dealing in

depictions charge, stipulated to revocation of the current SSODA due to failure to make

progress in treatment, and agreed to dismiss the telephone harassment count and

unrelated pending counts of indecent exposure. 1 The trial court concluded E.G. had

committed the offense of second degree dealing in depictions of a minor engaged in

1
E.G. was allegedly masturbating on a bus on his way to school.

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State v. E.G.

sexually explicit conduct. The trial court imposed a mitigated2 sentence of time served

and required him to register as a sex offender.

E.G. then timely appealed. This court accepted an amicus brief jointly filed by the

American Civil Liberties Union of Washington and the Juvenile Law Center. The parties

subsequently presented oral argument to a panel of this court.

ANALYSIS

The only issue in this appeal is whether the dealing in depictions statute properly

could be applied to E.G.'s conduct. He argues that the statute is unconstitutional under

both the First and Fourteenth Amendments to the United States Constitution. 3 Amici

reprise E.G.'s trial court argument that the statute should be interpreted in a manner that

permits a juvenile to distribute sexually explicit pictures of himself. We address the three

arguments in the order noted.

The statute in question is RCW 9.68A.050(2)(a), which defines the offense of second

degree dealing in depictions of minors engaged in sexually explicit conduct. It states:

A person commits the crime of dealing in depictions of a minor engaged in
sexually explicit conduct in the second degree when he or she:
(i) Knowingly develops, duplicates, publishes, prints, disseminates,
exchanges, finances, attempts to finance, or sells any visual or printed

2
E.G. suffers from Asperger's syndrome, which the trial court found to play a
significant part in the failure of treatment.
3
E.G. also argues that the evidence was insufficient to support the conviction if
his behavior was constitutionally protected expression. Since we reject his constitutional
arguments, we need not independently consider this argument.

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State v. E.G.

matter that depicts a minor engaged in an act of sexually explicit conduct as
defined in RCW 9.68A.011(4)(f) or (g); or

(ii) Possesses with intent to develop, duplicate, publish, print,
disseminate, exchange, or sell any visual or printed matter that depicts a
minor engaged in an act of sexually explicit conduct as defined in RCW
9.68A.Ol 1(4)(f) or (g).

The only definition referenced in the statute that has application to this case is

found in RCW 9.68A.Ol 1(4)(f). That statute defines "[s]exually explicit conduct" to

include:

Depiction of the genitals or unclothed pubic or rectal areas of any minor, or
the unclothed breast of a female minor, for the purpose of sexual
stimulation of the viewer.

Id.

We now consider the challenges raised, turning initially to the First Amendment

argument set forth by E.G.

First Amendment

E.G. argues that his conduct was protected by the First Amendment. Specifically,

E.G. argues that his transmission of the photograph was protected, expressive conduct

and that in prohibiting self-produced depictions, the statute sweeps too broadly, rendering

it unconstitutional. However, minors have no superior right to distribute sexually explicit

materials involving minors than adults do.

In determining the constitutionality of a statute, this court starts with a

presumption that the statute is constitutional and reviews challenges de novo. Lummi

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State v. E.G.

Indian Nation v. State, 170 Wn.2d 247, 257-58, 241 P.3d 1220 (2010). A party may

challenge the constitutionality of a statute as applied in the specific context of that party's

actions, or alternatively may facially challenge the statute as unconstitutional in all of its

applications. City ofRedmondv. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004).

To prevail on the former, the party must show a violation of a constitutional right. Id. To

prevail on the latter, the party must show that no set of circumstances exists in which the

statute can be constitutionally applied. Wash. State Republican Party v. Pub. Disclosure

Comm 'n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000). Holding a statute to be

unconstitutional as applied will prevent future application of that statute in similar

circumstances, while holding a statute facially unconstitutional renders it totally

inoperative. Id.

Because of the important rights protected by the First Amendment, a party may

challenge a statute on its face as being overbroad regardless of whether that party's rights

are affected. State v. Motherwell, 114 Wn.2d 353, 370-71, 788 P.2d 1066 (1990). "A

law is overbroad if it sweeps within its prohibitions constitutionally protected free speech

activities." Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989). While it is

inherently "dangerous" to regulate any form of expression, certain categories of

expression are exempt from First Amendment protections. New York v. Ferber, 458 U.S.

747, 754-55, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). One such category is child

pornography. In light of the State's interest in safeguarding the physical and

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No. 32354-4-III
State v. E.G.

psychological well-being of minors, the United States Supreme Court determined that all

child pornography is exempt from First Amendment protection. Id. at 764-65; see also

State v. Luther, 157 Wn.2d 63, 70-71, 134 P.3d 205 (2006).

E.G. argues that the goal of protecting minors from abuse and exploitation is not

served by prohibiting self-produced child pornography. Consequently, he contends that

self-produced child pornography should be excluded from the exemption. However, one

of the primary purposes of child pornography statutes is to restrict the distribution

network for child pornography in order to eliminate the market for producing the

materials. Ferber, 458 U.S. at 759. Exempting self-produced images simply affords

putative child pornographers the opportunity to purchase child pornography directly from

voluntary, consenting minors, or else encourages minors to produce and market their own

child pornography. Such exemptions would significantly frustrate efforts to combat child

pornography.

An exemption for minors would also constitute a significant expansion of their

First Amendment privileges in this area. States are permitted to prohibit the sale to

minors of non-obscene sexually-oriented materials that can be sold to adults. Ginsberg v.

New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968) (upholding New York

ban on sale of "girlie" magazines to those under 17). If the First Amendment does not

require a minor to have access to non-obscene materials that are available to adults, it

does not afford them a privilege to produce or distribute sexually explicit materials.

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No. 32354-4-III
State v. E.G.

The First Amendment does not consider child pornography a form of protected

expression. There is no basis for creating a right for minors to express themselves in

such a manner, and, therefore, no need to place a limiting construction on a statute that

does not impinge on a constitutional right. Accordingly, we conclude that the dealing in

depictions of minors statute does not violate the First Amendment when applied to

minors producing or distributing sexually explicit photographs of themselves.

Vagueness

E.G. next contends that the dealing in depictions statute is vague because it does

not provide notice that sending self-produced images of one's own genitalia to others is

included within the scope of the statute. While the statute's reach may be broad, it is not

vague.

"Under the Fourteenth Amendment, a penal statute is void for vagueness if it is

framed in terms so vague that persons of common intelligence must necessarily guess at

its meaning and differ as to its application." 0 'Day v. King County, 109 Wn.2d 796, 810,

749 P.2d 142 (1988). Moreover, "where First Amendment freedoms are at stake a

greater degree of specificity and clarity of purpose is essential." Id. The vagueness

doctrine serves both "to provide citizens with fair warning of what conduct they must

avoid" and protect from arbitrary law enforcement. State v. Halstien, 122 Wn.2d 109,

116-17, 857 P.2d 270 (1993). E.G. contends that the dealing in depictions statute fails

7
No. 32354-4-III
State v. E.G.

both prongs of the vagueness test because a minor would not know that it applied to

pictures he had taken of himself.

The problem with this argument is that it is made without reference to any

language in the statute. Rather, he has essentially argued that an ordinary person would

not expect sending a picture of himself to be covered under the crime of dealing in child

pornography. However, the language of the statute is plain and not vague. It prohibits "a

person" from disseminating sexually explicit pictures of "a minor." RCW

9.68A.050(2)(a). Nothing in the text of the statute suggests that there are any exceptions

to its anti-dissemination or anti-production language. The statute is aimed at eliminating

the creation and distribution of images of children engaged in explicit sexual behavior. It

could hardly be any plainer and does not remotely suggest there is an exception for self-

produced images.

E.G. also contends that the statute is vague because 20 percent4 of teenagers

allegedly engage in "sexting," the transmission of sexually suggestive or explicit

4
E.G. cites a survey conducted in 2008 by The National Campaign to Prevent
Teen and Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens and
Young Adults I, http://denp9zinex7nzb.cloudfront.net/sites/default/files/resouce-primary-
download/sex_and_tech_summary .pdf. That same source three years later noted in a
blog entry that a new study conducted in 2011 showed that the actual number might only
be two percent had "sexted" and discussed methodological differences between the two
surveys. Bill Albert, Sexting Redux, NAT'L CAMPAIGN TO PREVENT TEEN & UNPLANNED
PREGNANCY (Dec. 6, 2011), http://thenationalcampaign.org/blog/sexting-redux. The new
study in question was created by the University of New Hampshire Crimes Against
Children Research Center and published in Pediatrics. KimberlyJ. Mitchell et al.,

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No. 32354-4-III
State v. E.G.

photographs via cell phone, 5 and therefore could be subject to prosecution. His

argument, even if the facts supported the claim, is irrelevant. The fact that a large

number of people do something is not the test of whether police or prosecutors arbitrarily

enforce a law, nor does not tell us whether it is vague. If a large number of people,

especially those charged with enforcing the law, do not understand what a statute means,

then the law may be vague and subject to arbitrary enforcement, leading to its demise as a

matter of due process. But ignorance of a law is not the same as ignorance of the

meaning of a law. The fact that minors may not appreciate they are breaking a law is not

proof that they do not understand it.

But, the test of vagueness is whether an ordinary person would understand the

meaning of the statute. Halstien, 122 Wn.2d at 117. It is the burden of the challenger to

establish that the statute is vague. Id. at 118. E.G. does not attempt to meet that burden

in this appeal. He can point to no ambiguity in the text nor otherwise show that the

statute is not understandable. It does not bear the interpretation he desires, but it is not

for that reason unconstitutionally vague.

Prevalence and Characteristics of Youth Sexting: A National Study, 129 PEDIATRICS 13
(2012). The New Hampshire study suggested that less than two percent of teens had sent
pictures of explicit images, while nearly ten percent had been involved with sexually
suggestive images. Id. at 18. It also noted that transmission of sexually explicit pictures
constituted criminal behavior, leading to the need to inform teens of the issue and of
creating less draconian methods of addressing the problem. Id. at 18-19.
5
http://www.merriam-webster.com/dictionary/sexting (last visited June 7, 2016).

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No. 32354-4-III
State v. E.G.

The vagueness argument is without merit.

Statutory Construction

Amici argue, for factual considerations similar to those made by E.G. and for

policy reasons discussed briefly below, that the dealing in depictions statute should be

interpreted to exclude minors who send pictures of themselves, thereby ensuring that

sexting does not fall within the reach of the statute. This, however, is not a sexting

case-and we do not opine on whether the dealing in depictions statute would apply to a

minor sending a picture of herself to a willing minor recipient-and the statute simply

does not bear the construction the amici would give it. 6

The terms of the statute are clear-"[a] person" who disseminates sexually explicit

photographs of "a minor" violates the statute. Like E.G., the amici do not argue that

there is any ambiguity in the terms of the statute. Instead, pointing to the statement of

intent adopted by the legislature, they argue that it is not rational that E.G. can both be the

victim of the offense and the perpetrator. There are a couple of problems with that

argument.

6
Appellate courts do not typically address issues raised only by an amicus. E.g.,
Longv. Odell, 60 Wn.2d 151, 154, 372 P.2d 548 (1962). Here, however, the amici are
raising the same issue argued by E.G. to the trial court, and counsel for E.G. at oral
argument expressly indicated that her client joined the argument. Since the State did
answer the argument in its response to the amici, it is not unfair to any party to address
the claim. The issue is properly before us.

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No. 32354-4-III
State v. E.G.

Although there is no ambiguity in the statute that would require a reviewing court

to construe the statute with regard to legislative intent, the amici properly nonetheless

note that statutes should be interpreted to avoid absurd results. E.g., Five Corners Family

Farmers v. State, 173 Wn.2d 296, 311, 268 P.3d 892 (2011). 7 They argue that it would

be absurd for E.G. to be both victim and perpetrator. We disagree. First, nothing in the

statute requires proof of any specific "victim" status as an element of the offense. Rather,

child pornography per se victimizes children, which is the reason the legislature is

seeking to eradicate it, whether or not the child willingly takes part. 8 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. 9

The second reason that this is not a case of innocent sharing of sexual images

between teenagers. It appears, instead, to be the latest step in a campaign of anonymous

7
Although it is important to avoid absurd consequences, this doctrine is applied
sparingly. Five Corners, 173 Wn.2d at 311.
8
Even if typical sexting initially is treated as innocent activity, there is still a
significant risk of harm when one of the recipients subsequently shares the images with
others, whether the new recipients are peers or adults. The studies noted supra note 4
show that further transmission of shared images to others is a common occurrence and an
easy way to misuse "innocent" sharing to victimize a minor.
9
There are many circumstances where the legislature uses the criminal law to
restrict the ability of minors to harm themselves or other minors, including the laws
against child rape and molestation, as well as the use of alcohol by minors. See, e.g.,
RCW 9A.44.073-.089; RCW 66.44.270(2).

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No. 32354-4-III
State v. E.G.

harassment ofT.R. for reasons best known to E.G., but even if it was an effort to entice

or impress her, this was not an innocent activity. For this reason, most of the amici

policy arguments simply are not applicable here. Furthermore, since E.G. was already a

registered sex offender with an obligation to report, there is no danger that he was being

subject to public opprobrium through an innocent mistake. Similarly, he was already

undergoing, albeit unsuccessfully, sex offender treatment through the rehabilitative

auspices of the juvenile court. Further prosecution in juvenile court for the messages sent

to T.R. did not undercut the rehabilitation efforts underway there; indeed, prosecution of

this case as a dealing in depictions charge may have been the only way to keep him

before the juvenile court. E.G. did not succeed due to his own behavior and his own

challenges. The prosecution of this case did not undercut the therapeutic ideals of

juvenile court.

Amici make a strong policy argument that sexting cases should not be treated

under the dealing in depictions statute. The prosecutor agreed at oral argument that

prosecutors typically would not charge such cases under that law. Since this was not a

sexting case, this court need not weigh in on that issue now. But if this statute needs to

be amended to ensure that policy-or some other statute needs to be enacted to address

the problem, then the legislature is the body that must act. Amici's policy arguments are

best addressed to that body.

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No. 32354-4-111
State v. E • G •

Accordingly, we affirm the juvenile court's adjudication and disposition of this

case.

WE CONCUR:

L}cUo0{J '~.
Siddoway, J.

13