(concurring) — The defendant concealed a video camera in his minor stepdaughter’s bedroom. It videotaped her nude body as she was dressing. He did nothing to cause her to act as she did. She was following her morning routine for getting dressed, and he was engaging in photographic voyeurism.
The defendant was charged and convicted under RCW 9.68A.040. That statute states:
(1) A person is guilty of sexual exploitation of a minor if the person:
(a) Compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance;
*431(b) Aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; or
(c) Being a parent, legal guardian, or person having custody or control of a minor, permits the minor to engage in sexually explicit conduct, knowing that the conduct will be photographed or part of a live performance.
RCW 9.68A.040.
To convict under this statute, the State must establish (1) that a minor engaged in "sexually explicit” conduct; (2) that the defendant knew the conduct would be photographed or part of a live performance; and (3) that the defendant compelled, aided, employed, authorized, caused, or, if a parent or legal guardian of the minor, permitted the conduct. Clearly, the State has established the second and third propositions in this case. It has also established that the stepdaughter was a minor. Hence, the issue is whether the stepdaughter engaged in "sexually explicit” conduct, as opposed to some other kind of conduct.
The term "sexually explicit conduct” is defined, insofar as pertinent here, as an "[e]xhibition of the genitals or unclothed pubic or rectal areas . . . for the purpose of sexual stimulation of the viewer.” RCW 9.68A.011(3)(e). To apply this definition in a given case, it is necessary to ascertain (1) whether there was an exhibition of the genitals or unclothed pubic or rectal areas, and (2) whether the exhibition was for the purpose of the sexual stimulation of the viewer. In the present case, it is undisputed that the stepdaughter unwittingly "exhibited” her unclothed pubic area to the camera. Thus, the only question to be decided is whether the exhibition was "for the purpose of sexual stimulation of the viewer.”
Necessarily, an exhibition’s purpose is the purpose of the person who initiates the exhibition. If considered independently of its initiator, an exhibition is inanimate and lacks any "purpose” of its own.
*432Because an exhibition’s purpose is the purpose of its initiator, the first step toward analyzing whether an exhibition was "for the purpose of sexual stimulation of the viewer” is to identify the exhibition’s initiator. Under the statute’s careful and apparently intentional wording, that person can be the defendant, a third person, or even the minor; but whoever that person is, his or her purpose must have been to sexually stimulate the viewer.
These concepts play a practical and fundamental role in the statute’s overall design, for they are the mechanism by which the statute distinguishes between exploitation and voyeurism. By broadly defining who the exhibition’s initiator can be, the statute’s drafters attempted to reach all or most instances of commercial and private exploitation. By requiring that the initiator have a purpose of stimulating one or more viewers, however, the statute’s drafters attempted to exclude situations involving voyeurism (i.esituations in which no one acts for the purpose of sexually stimulating a viewer, but a viewer sees the conduct and, in his or her own mind, regards it as sexually stimulating).
In this case, the defendant was not the initiator of the minor’s conduct, for he did not affect it in any way. The minor did not know the defendant’s camera was present, and she acted just as she would have had the camera not been present.
Nor was the minor the initiator of "sexually explicit” conduct. Even though she exposed her unclothed pubic area for a short time while getting dressed, she obviously was not acting "for the purpose of sexual stimulation” of any viewer. It follows that the record is insufficient to show "sexually explicit” conduct, and that the conviction must be reversed.
I make two more comments before closing. The dissent, it seems to me, fails to distinguish the purpose of the defendant from the purpose of the initiator of the minor’s conduct. I have no quarrel with the proposition that the defendant’s purpose in this case was to sexually stimulate *433himself. That, however, does not make the minor’s conduct "sexually explicit,” where the minor, as the initiator of the conduct, did not know Chester was watching and had no purpose related to anyone’s sexual stimulation. To hold otherwise would make innocent conduct "sexually explicit” due only to an unknown observer’s warped state of mind.
Additionally, I distinguish State v. Myers, 82 Wn. App. 435. The record in Myers supports inferences that the defendant was initiator of the minor’s conduct, and that he was acting "for the purpose of sexual stimulation of the viewer,” i.e., himself.
In summary, the drafters of RCW 9.68A.040 and its related definitions meant to distinguish between exploitation and voyeurism by requiring that an "exhibition” of the minor’s genital or rectal areas be "for the purpose of sexual stimulation of the viewer.” The present record does not support a reasonable inference of any such purpose. Thus, it is insufficient to prove "sexually explicit” conduct, and I agree with Judge Bridgewater that the conviction must be reversed.