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CHIEF JUSTICE
SUSAN L CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent, No. 93609-9
V. En Banc
ERIC D. GRAY,
Filed SEP 1 %
Petitioner.
OWENS,J. — When he was 17 years old, Eric D. Gray electronically sent an
unsolicited picture of his erect penis to an adult woman. The woman contacted the
police, and Gray was charged with and convicted of one count of second degree
dealing in depictions of a minor engaged in sexually explicit conduct under ROW
9.68A.050. He appealed, claiming the plain language ofthe statute does not
anticipate minors who take and transmit sexually explicit images ofthemselves.
ROW 9.68A.050 prohibits developing or disseminating sexually explicit
images of minors. On its face, this prohibition extends to any person who
disseminates an image of any minor, even ifthe minor is disseminating a self-
State V. Gray (Eric)
No. 93609-9
produced image. Because the statute is unambiguous, we take it on its face and find
that Gray's actions are included under the statute. We further find that the statute
does not infringe Gray's First Amendment rights, nor is it unconstitutionally vague.
See U.S. Const, amend. I. Therefore, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In 2013, T.R., a 22-year-old woman, went to the Spokane County Sheriffs
Office to report a series of harassing phone calls she had received over the past year.
She stated that the caller used a restricted number and would not provide a name,but
that she believed the caller was male. She also stated that she believed the caller was
Gray.
T.R. also reported that she had received two text messages the day before. The
first contained a photograph of an erect penis and the words "(Eric Gray)picture
message sent from Finger." Clerk's Papers at 59. The second message read,'"Do u
like it babe? It's for you [T.R.]. And for Your daughter babe-Sent From TextFree!'"
Id. Using the phone number associated with the messages and additional information
from the user's Finger account, the Spokane County Sheriffs Office confirmed the
messages came from Gray.
About two weeks later, the deputy who took T.R.'s report went to Gray's house
to question him. Gray was 17 at the time and lived with his parents. He had been
diagnosed with Asperger's syndrome and had a prior adjudication requiring him to
State V. Gray (Eric)
No. 93609-9
register as a sex offender. Though initially composed during questioning and
believing the sheriff had come to talk with him about his sex offender registration,
Gray's demeanor quickly became agitated when he learned the deputy's actual
purpose. He admitted that he had been calling T.R. for the past year and had sent the
text messages. He stated that T.R. used to work for his mother, that he retrieved T.R's
phone number from his mother's business records, and that he was attracted to T.R.
He also admitted that it was his erect penis in the photograph.
The State charged Gray in juvenile court with one count of second degree
dealing in depictions of a minor engaged in sexually explicit conduct under RCW
9.68A.050. It also charged him with one count oftelephone harassment under RCW
9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the
trial court denied.
In a stipulated facts trial, the court found Gray guilty ofthe second degree
dealing in depictions of a minor charge. The State agreed to dismiss the telephone
harassment charge and chose not to charge him with two counts of misdemeanor
indecent exposure stemming from an unrelated incident. He was sentenced to 150
hours of community service, 30 days of confinement, and fees, before being released
with credit for time served. He was again ordered to register as a sex offender.
Gray appealed to Division Three ofthe Court of Appeals, which affirmed his
adjudication. State v. E.G., 194 Wn. App. 457, 377 P.3d 272(2016). It found that
State V. Gray (Eric)
No. 93609-9
"[t]he 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." Id. at 468. The court also suggested that
this ease was distinguishable from a "ease ofinnocent sharing of sexual images
between teenagers" and so declined to analyze such a situation. Id. Because ofthis, it
found that the statute anticipated Gray's actions and that the statute did not violate
either the federal or state constitutions.
Gray petitioned this court for review, which was granted. State v. Gray, 187
Wn.2d 1001, 386 P.3d 1082(2017). The American Civil Liberties Union of
Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild
subsequently filed a joint brief as amiei curiae.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking
and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation ofthe
federal or state constitutions? See U.S. CONST, amends. V,XIV.
STANDARD OF REVIEW
The first issue here is whether the statute on its face applies to Gray. We review
questions of statutory interpretation de novo. State v. Bunker, 169 Wn.2d 571, 577-
78, 238 P.3d 487(2010)(citing City ofSpokane v. Spokane County, 158 Wn.2d 661,
State V. Gray (Eric)
No. 93609-9
672-73, 146 P.3d 893 (2006)). Whether the statute permits prosecution of a minor
taking and transmitting a sexually explicit image of himself is a question offirst
impression in this court.
ANALYSIS
We must first determine whether a "person" under the dealing in depictions of
a minor statute can also be the "minor" depicted in the images. If so, we must then
determine whether the statute is overbroad in violation of the First Amendment free
speech guaranty or whether the statute is unconstitutionally vague.
1. Gray's Actions Fall under the Dealing in Depictions ofa Minor Statute
This court's duty is to "give effect to the Legislature's intent." State v. Elgin,
118 Wn.2d 551, 555, 825 P.2d 314(1992)(citing Wash. Pub. Power Supply Sys. v.
Gen. Elec. Co., 113 Wn.2d 288, 292, 778 P.2d 1047(1989)). The clearest indication
of legislative intent is the language enacted by the legislature itself. State v. Ervin,
169 Wn.2d 815, 820,239 P.3d 354(2010)(quoting State v. Jacobs, 154 Wn.2d 596,
600, 115 P.3d 281 (2005)). Therefore,"if the meaning of a statute is plain on its face,
we 'give effect to that plain meaning.'" Id.(internal quotation marks omitted)
(quoting Jacobs, 154 Wn.2d at 600). However, we will not read a statute in isolation;
we determine its plain meaning by taking into account "the context ofthe entire act"
as well as other related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d
State V. Gray (Eric)
No. 93609-9
1003(2014){c{}xoimg Dep't ofEcology V. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,
43 P.3d 4(2002)).
A. The Plain Language ofthe Statute Prohibits Transmitting Sexually
Explicit Images ofa Minor Even Ifthe Minor HimselfSent It
Here, the statute is unambiguous and we give it its plain meaning. RCW
9.68A.050 prohibits dealing in depictions of a minor engaged in sexually explicit
conduct. In relevant part, it states that "[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 . . .[kjnowingly develops,... publishes,...[or] disseminate[s]... any
visual or printed matter that depicts a minor engaged in an act of sexually explicit
conduct...." RCW 9.68A.050(2)(a). "Sexually explicit conduct" is a depiction "of
the genitals or unclothed pubic or rectal areas of any minor ... for the purpose of
sexual stimulation ofthe viewer." RCW 9.68A.01 l(4)(f). A "minor" is "any person
under eighteen years of age." RCW 9.68A.011(5). Finally, a "person" is any "natural
person," whether an adult or a minor. RCW 9A.04.110(17),.090. Therefore, when
any person, including a juvenile, develops, publishes, or disseminates a visual
depiction of any minor engaged in sexual conduct, that person's actions fall under this
statute's provisions.
Under this statute, the State properly charged Gray for his actions. When he
was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person.
State V. Gray (Eric)
No. 93609-9
Gray is a "natural person" and therefore a person for purposes ofthe statute. He was
also under the age of 18, making him a minor under the statute as well. He stated he
was attracted to T.R., and when he sent the picture he included the phrase "Do u like
it, babe?," indicating an attempt to arouse the recipient. The picture he transmitted
was, therefore, a visual depiction of a minor engaged in sexually explicit conduct
because it was a picture of a minor's genitals designed to sexually stimulate the
viewer. This falls squarely within the statute's plain meaning.
Gray argues that he cannot be charged under this statute because the "person"
and the "minor" must be two different people. He states that had the legislature
intended to include the depicted minor under the definition of"person," it would have
explicitly done so. We disagree.
As noted above, a "person" is any natural person and a "minor" is merely a
person who is not yet 18. RCW 9A.04.110(17); RCW 9.68A.011(5). Under this
statute, there is nothing to indicate the "minor" cannot also be the "person." Contrary
to Gray's arguments, we find that had the legislature intended to exclude the depicted
minor from the definition of"person," it would have done so as it has in other sections
in this chapter. See RCW 9.68A.101(3)(a)(specifically excluding minors receiving
compensation for sexual conduct from the definition of a "person" guilty of promoting
commercial sexual abuse of a minor). Because the legislature has not excluded
State V. Gray (Eric)
No. 93609-9
minors from the definition of"person" here, Gray was properly charged under this
statute.
Both Gray and amici urge that if we determine a minor can be charged under
this statute for taking and disseminating sexually explicit pictures of himself, it could
have dire consequences for other minors engaging in "sexting." They argue that the
legislature never intended to criminalize teenagers consensually exchanging sexually
explicit photographs, opining that doing so would be an impermissible infringement
ofthose teenagers' First Amendment freedom of expression.
Though both parties and amici have briefed the issue, those are not the facts
before us. We understand the concern over teenagers being prosecuted for
consensually sending sexually explicit pictures to each other. We also understand the
worry caused by a well-meaning law failing to adapt to changing technology. But our
duty is to interpret the law as written and, if unambiguous, apply its plain meaning to
the facts before us. Gray's actions fall within the statute's plain meaning. Because he
was not a minor sending sexually explicit images to another consenting minor, we
decline to analyze such a situation.
The statute here is unambiguous. A "person" is any person, including a minor.
Images of a "minor" are images of any minor. Nothmg in the statute indicates that the
"person" and the "minor" are necessarily different entities. Therefore, the
photographer or distributor may also be the minor in the photograph. Because of this.
State V. Gray (Eric)
No. 93609-9
Gray was properly charged with taking and disseminating sexually explicit images of
a minor.
B. The Legislature's Findings Support Our Plain Reading ofthe Statute
The legislative findings support our plain reading. As noted above, our
paramount duty is to effectuate the legislature's intent. Elgin, 118 Wn.2d at 555. We
will diverge from a plain reading only if a '"contrary legislative intent is indicated.'"
State V. Jones, 172 Wn.2d 236, 242, 257 P.3d 616(quoting Ravenscroft v. Wash.
Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998)).
Gray argues that the legislature intended to focus on adult purveyors of child
pornography, not juveniles who voluntarily take photographs oftheir own bodies. He
cites to the legislative findings, stating that when the legislature "drafted the statute it
was concerned about holding individuals who engage in the sexual abuse of children
for their own commercial gain criminally accountable." Suppl. Br. ofPet'r at 9-10
(citing RCW 9.68A.001). We agree that this statute was undoubtedly intended to
address the sexual abuse and exploitation of children by adults. However,the scope
of this statute is larger than what Gray presents.
The legislature intended to destroy the blight of child pornography everywhere,
from production ofthe images to commercial gain. As Gray notes, the State has a
compelling interest in "protecting children from those who sexually exploit them."
RCW 9.68A.001(2). However,"this interest extends to stamping out the vice of child
State V. Gray (Eric)
No. 93609-9
pornography at all levels in the distribution chain." Id. This includes at its inception.
It is our duty to effectuate the legislature's intent, not rewrite the words the legislature
used. Ifthe legislature intended to exclude children, it could do so by amending the
statute. See LAWS OF 2017, ch. 126, § 3(amending RCW 9.68A.050 to a class B
felony, but making no other alterations). Because the statute was intended to curtail
production of child pornography at all levels in the distribution chain, the statute
prohibits Gray's actions.
Similarly, the dissent contends that there is a "long-standing and well-accepted
rule" that when a legislature enacts a criminal law to protect a specific class, we
cannot interpret the law to permit prosecution of a member ofthat protected class
"unless the legislature explicitly says so." Dissent at 13. But the dissent
overgeneralizes, relying on cases that deal with coconspirator/accomplice/aider and
abettor liability and factual scenarios entirely different from this one.
The cases cited by the dissent deal largely with accomplice or coconspirator
liability, rather than an individual acting alone. See Nigro v. United States, 117 F.2d
624,629(8th Cir. 1941)(coconspirator liability); United States v. Shear, 962 F.2d
488,493 (5th Cir. 1992)(employee aider and abettor liability). For example, in
Gebardi v. United States, 287 U.S. 112, 53 S. Ct. 35, 77 L. Ed. 206 (1932), which the
dissent discusses in detail, the Supreme Court addressed whether a woman who was
trafficked for the purpose of prostitution could be held criminally liable for conspiring
10
State V. Gray (Eric)
No. 93609-9
with the trafficker. Additionally, in City ofAuburn v. Hedlund, 165 Wn.2d 645,652,
201 P.3d 315 (2009), the only Washington case cited by the dissent, we addressed
accomplice liability: whether a passenger and sole survivor in a car accident could be
charged as an accomplice to driving under the influence. But here. Gray was not
acting as an accomplice, aider and abettor, or coconspirator; he acted on his own.
We acknowledge that an exception for victims may apply in other contexts: for
example, for children involved in the manufacture of child pornography. Indeed,
"[wjhen a crime inherently requires 'two to tango,' but the statute is not intended to
punish the victim ofthe crime—as is the case in prostitution or the manufacture of
pornography—federal courts regularly apply a common-law exception to
conspiratorial or accomplice liability." United States v. Daniels, 653 F.3d 399,413
(6th Cir. 2011); see also RCW 9A.08.020(5)(a)(crime victims exempt from
accomplice liability). But this case is not about the manufacture of child
pornography. It is about one individual's distribution of a sexually explicit image to
an unwilling recipient. Contrary to the dissent's view, this court has not adopted a
general presumption that all statutes designed to protect a particular class are
presumed to exempt all members ofthat class from criminal liability, no matter the
circumstances. The dissent paints with too broad a brush.
11
State V. Gray (Eric)
No. 93609-9
2. The Statute Is Neither Unconstitutionally Overbroad Nor Unconstitutionally
Vague
Gray and amici both argue the statute impermissibly infringes on Gray's First
Amendment freedom of speech guaranty, claiming it is overbroad and improperly
curtails protected speech. They also assert that the statute is impermissibly vague
because it opens the door to discriminatory application and does not effectively
inform the public about proscribed conduct. We disagree with both assertions.
A. The Statute Does Not Improperly Infringe on Gray's First Amendment
Freedom ofExpression
Under the First Amendment, a statute is unconstitutionally overbroad if it
prohibits a substantial amount of protected speech. United States v. Williams, 553
U.S. 285, 292, 128 S. Ct. 1830, 170 L. Ed. 2d 650(2008). Thus, the first step in
overbreadth analysis is to construe the challenged statute because "it is impossible to
determine whether a statute reaches too far without first knowing what the statute
covers." Id. at 293. The overbreadth doctrine is '"strong medicine'" and should be
used with hesitation. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S.
32, 39, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999)(internal quotation marks omitted)
(quoting New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 73 L. Ed. 2d 1113
(1982)). Though there are "'inherent dangers of undertaking to regulate any form of
expression,"' the United States Supreme Court has recognized that some forms of
expression are outside the protections ofthe First Amendment. Ferber,458 U.S. at
12
State V. Gray (Eric)
No. 93609-9
755 (quoting Miller v. California, 413 U.S. 15, 23, 93 S. Ct. 2607, 37 L. Ed. 2d 419
(1973)). Child pornography is one ofthese forms, and it can be constitutionally
prohibited if"the conduct to be prohibited [is] adequately defined by the applicable
state law, as written or authoritatively construed." Id. at 764.
Here, RCW 9.68A.050 adequately defines the criminal conduct, limiting itself
to the production or distribution of child pornography. It will apply only to an
individual who "[kjnowingly develops,... publishes,...[or] disseminates . ..[any]
visual or printed matter that depicts a minor engaged in an act of sexually explicit
conduct...." RCW 9.68A.050(l)(a)(l). Because this statute proscribes only child
pornography and because child pornography does not enjoy First Amendment
protections, the statute is not overbroad.
Nonetheless, Gray contends that his actions are unique from child pornography
and, therefore, retain First Amendment protections. He concedes that Ferber placed
child pornography outside the protections ofthe First Amendment. 458 U.S. at 764.
However, he contends that Ashcroft v. Free Speech Coalition has since clarified that
holding. 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002).
In Free Speech Coalition, the Supreme Court struck down a law that banned
sexually explicit depictions of minors, as well as depictions that appeared to be
minors. Id. at 241. These included computer generated images and depictions of
legal adults pretending to be minors. Id. The Court recognized that the First
13
State V. Gray (Eric)
No. 93609-9
Amendment"does not embrace certain categories of speech, including .. .
pornography produced with real children." Id. at 245-46. However,the Court found
the prohibition ofimages that appear to be, but are not actually, minors improper; any
harm stemming from those false images "does not necessarily follow from the speech,
but depends upon some unquantified potential for subsequent criminal acts." Id. at
250.
Gray claims his case is similar. Because a fabricated computer image of a
minor does not involve an exploited child, it falls within traditional First Amendment
protections. Consequently Gray argues that just as no children were exploited in Free
Speech Coalition, no child was exploited here and his speech is entitled to First
Amendment protections. He claims any potential harm in his case is just as attenuated
and vague as Free Speech Coalition. Because no harm was done, he should have the
same right as any adult to take voluntary photographs of his own body. We do not
find this argument persuasive.
We find that RCW 9.68A.050 is not overbroad. It regulates only sexually
explicit images of actual children, which is speech outside the protections ofthe First
Amendment. Because Gray transmitted such an image, his actions do not fall under
First Amendment protection. We affirm the Court of Appeals.
14
State V. Gray (Eric)
No. 93609-9
B. The Statute Is Not Unconstitutionally Vague and Therefore Not Voidfor
Vagueness
Gray finally argues that RCW 9.68A.050 is void for vagueness under the
Fourteenth Amendment to the federal constitution and article I, section 3 of our state
constitution. He and amici argue that if a depicted minor can also be the "person"
under this statute, it does not properly inform the public about what actions are
prohibited. Further, it allows the State to pick and choose which minors may be held
accountable under the statute. They voiced particular concern about teenagers
consensually exchanging explicit material and whether they would fall under the
statutes provisions. However, we find the statute not to be unconstitutionally vague.
A statute can be void for vagueness in two ways. First, the statute may
"authorize and even encourage arbitrary and discriminatory enforcement." City of
Chicago V. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999).
Second, the statute could "fail to provide the kind of notice that will enable ordinary
people to understand what conduct it prohibits." Id. The most important aspect ofthe
vagueness doctrine is "'the requirement that a legislature establish minimal guidelines
to govern law enforcement.'" Kolender v. Lawson,461 U.S. 352, 358, 103 S. Ct.
1855, 75 L. Ed. 2d 903(1983)(quoting Smith v. Goguen,415 U.S. 566, 574,94 S. Ct.
1242, 39 L. Ed. 2d 605 (1974)). We generally analyze due process claims under
15
State V. Gray (Eric)
No. 93609-9
article I, section 3 in the same way as vagueness claims under the Fourteenth
Amendment. See State v. Jordan, 180 Wn.2d 456,462, 325 P.3d 181 (2014).
Here, the statute is not void for vagueness. First, it does not invite arbitrary and
discriminatory enforcement. Gray claims that because the State infrequently
prosecutes teenagers who send each other explicit images but chose to prosecute him,
it demonstrates arbitrary enforcement. However,the State is vested with great
discretion in determining how and when to file criminal charges. State v. Korum, 157
Wn.2d 614,625, 141 P.3d 13(2006)(plurality opinion). Gray presents no evidence
the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording ofthe statute allows a reasonable person to understand
what conduct is prohibited. It states that "[a] person" will be guilty if they transmit
sexually explicit images of"a minor." RCW 9.68A.050(2). On its face, this includes
any person, even a minor taking a picture of himself. Our responsibility is to interpret
the law, not to write it, and here the law is clear.
Finally, Gray cannot bring a vagueness claim based on vagueness as applied to
others. See Vill. ofHoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S. Ct. 1186,
71 L. Ed. 2d 362(1982). We understand the concern that the State will charge two
teenagers consensually exchanging sexually explicit images of themselves. However,
that circumstance is not before us. Our duty is to interpret the statute as applied to
Gray. Because we are limited to the facts in Gray's case, we decline to analyze
16
State V. Gray (Eric)
No. 93609-9
whether two teenagers could constitutionally be charged for exchanging explicit
pictures,
CONCLUSION
RCW 9.68A.050 is unambiguous and anticipates Gray's actions. The statute
prohibits any person from developing or disseminating a sexually explicit image of
any minor. Here, Gray sent a sexually explicit picture of himself to an adult woman.
Because Gray is a person and because he sent a sexually explicit picture of himself
while he was a minor, he was properly charged under the statute. Further, the statute
does not unconstitutionally infringe on Gray's freedom of expression, nor is it
unconstitutionally vague. Therefore, we affirm the Court of Appeals.
17
State V. Gray (Eric)
No. 93609-9
WE CONCUR:
y\_ A A W ^
18
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
No. 93609-9
GORDON McCLOUD, J. (dissenting)—The majority holds that ROW
9.68A.050 contains "nothing to indicate the 'minor'[who is exploited by depictions
of him or her "engag[ing] in sexually explicit conduct"] carmot also be the 'person'
[who is prosecuted for doing the exploiting]." Majority at 7; ROW 9.68A.060(2)(a).
I disagree. For more than 80 years, the United States Supreme Court, federal
courts, and Washington courts have held that when the legislature enacts a statute
designed for the protection of one class—^here, children depicted in sexually explicit
conduct—it shows the legislature's intent to protect members of that class from
criminal liability for their own depiction in such conduct. E.g., Gebardi v. United
States, 287 U.S. 112, 119, 53 S. Ct. 35, 77 L. Ed. 206 (1932); City of Auburn v.
Hedlund, 165 Wn.2d 645, 652, 201 P.3d 315 (2009). RCW 9.68A.050 was enacted
against that historical backdrop. It was specifically intended to protect children
depicted in pornography. Since the legislature enacted RCW 9.68A.050 to protect
those children, it necessarily follows that those children who are depicted and hence
exploited are exempt from prosecution under RCW 9.68A.050 for such depictions
of themselves.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
Indeed, if the legislature wanted us to apply a different rule of statutory
interpretation—one that would permit members ofthe protected class to be charged,
prosecuted, convicted, and imprisoned for up to 10 years' for sexually explicit,
exploitative depictions of their own bodies—it was the legislature's duty to
explicitly say that they were departing from the general rule of statutory
interpretation. The legislature did not say so here. Its silence must be construed as
an endorsement ofthe general rule.
The majority's contrary interpretation of the statutory language produces
absurd results. The majority's interpretation punishes children who text sexually
explicit depictions of their own bodies to adults far more harshly that it punishes
adults who do the same thing. It punishes children who text such depictions oftheir
own bodies to adults even more harshly than adults who text such sexually explicit
photos to children. It even punishes the child who is groomed and led into taking
such photos and forwarding them to the grooming adult! In short, the majority's
interpretation punishes the most vulnerable participant—^the depicted child—no
' As the State points out, the legislature recently amended RCW 9.68A.050 to
reclassify second degree dealing in depictions of a minor engaged in sexually explicit
conduct from a Class C felony to a Class B felony. Laws OF 2017, ch. 126, § 3. Class C
felonies are punishable by up to 5 years in prison and/or $10,000 in fines; class B felonies
are punishable by up to 10 years in prison and/or $20,000 in fines. RCW 9A.20.021(l)(b),
(a).
2
State V. Gray (Eric), 93609-9
(Gordon McCIoud, J., dissenting)
matter what personal pressures or personal demons (Gray suffers from Asperger's
syndrome) compelled the child to do it.
That carmot be what the legislature intended. I therefore respectfully dissent.
Analysis
I. The Plain Language of RCW 9.68A.050,Read in Context,Does Not
Penalize the Class of Persons—Minors Depicted in
Pornography—Whom The Statute Was Designed To Protect
A. The Purpose of RCW 9.68A.050 Is To Protect Children from Sexual
Exploitation by Depiction in Pornography
As the majority notes,"This court's duty is to 'give effect to the legislature's
intent.'" Majority at 5 (quoting State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314
(1992)). To determine that intent, we begin with the language of the statute. State
V. Larson, 184 Wn.2d 843, 848, 365 P.3d 740(2015). The statute under which Eric
Gray was convicted, RCW 9.68A.050(2)(a), provides in relevant part:
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 matter that depicts a minor engaged in an act of
sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g). .
(Emphasis added.) As the majority correctly notes, this statute lacks an explicit
textual limit on what "person" may be prosecuted for exploiting "a minor."
3
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
But we do not stop with statutory language. Our duty is to figure out the
legislature's intent, so we read that language in context to determine its meaning.
Larson, 184 Wn.2d at 848 (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d
354 (2010)). And we presume that the legislature is familiar with existing rules of
statutory interpretation. State v. Varnell, 162 Wn.2d 165, 171, 170 P.3d 24(2007)
(citing State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000)); see also Warmington
V. Emp'tSec. Dep't, 12 Wn. App. 364, 367, 529 P.2d 1142(1974).
Here, the statutory context shows that RCW 9.68A.050(2)(a) was enacted to
protect "minor[s]" from sexual exploitation via depiction in pornography. Chapter
9.68A RCW is titled "Sexual Exploitation of Children." RCW 9.68A.001 explicitly
states that legislative intent: "the prevention of sexual exploitation and abuse of
children" and "the protection of children from sexual exploitation." It focuses on
prosecuting those who gain from exploiting such depicted children: it is intended
"to hold those who pay to engage in the sexual abuse of children accountable for the
trauma they inflict on children." RCW 9.68A.001. That "Legislative findings,
intent" section further clarifies that "[t]he state has a compelling interest in
protecting children from those who sexually exploit them ...." RCW 9.68A.001(2).
The majority agrees: "We agree that this statute was undoubtedly intended to
address the sexual abuse and exploitation of children by adults." Majority at 9. So,
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
while the legislature also intended to "'stamp[] out the vice of child pornography at
all levels in the distribution chain,'" id. (quoting RCW 9.68A.001(2)), the tool it
chose was a statute that protects a particular class: minors vulnerable to sexual
exploitation by their depiction in sexually explicit conduct. Gray is a member of
that protected class. The legislature wrote this statute to protect him. Yet he was
prosecuted because of his status as a member of that class—^that is, because he
himself was depicted while engaged in sexually explicit conduct.
B. The General Rule Is That a Statute Designed To Protect Members of a
Particular Class Shows the Legislature's Decision To Exempt Members
of That Class from Criminal Liability for Their Own Exploitation
As discussed above, the general rule is that a statute designed for the
protection of a particular class is presumed to exempt that protected class from
criminal liability for their own harm—even when a protected individual was a
necessary and willing participant in his or her own exploitation or harm by the
perpetrator.^ See Gebardi, 287 U.S. at 119; United States v. Shear, 962 F.2d 488,
^ I note that the affirmative legislative intent not to punish members of a protected
class does not bestow blanket immunity on individuals merely because of their status as
members of a protected class. See Gebardi, 287 U.S. at 120 ("[the] [ijncapacity of one to
commit the substantive offense does not necessarily imply that he [or she] may with
impunity conspire with others who are able to commit it"); see also Cote H. v. Eighth
Judicial Dist. Court, 124 Nev. 36,40-41, 175 P.3d 906(2008)(a boy who abused his four-
year-old cousin could be criminally liable despite belonging to the class of persons the
statute was meant to protect). A perpetrator may still be liable for harm to another victim
even if he or she is a member of the same statutorily proteeted class as a victim.
5
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
493 (5th Cir. 1992) (employee not criminally liable for employer's OSHA
(Occupational Safety and Health Act of 1970,29 U.S.C. § 666(e))violations because
employees are "members of the particular class for whose special protection OSHA
was enacted"); United States v. Doig, 950 F.2d 411, 414 (7th Cir. 1991)(same);
United States v. Amen, 831 F.2d 373, 381 (2d Cir. 1987)("When Congress assigns
guilt to only one type of participant in a transaction, it intends to leave the others
unpunished for the offense."); Nigro v. United States, 117 F.2d 624, 629 (8th Cir.
1941) ("the omission of Congress to make the act of an addict in purchasing
narcotics to satisfy his cravings an offense is evidence of an affirmative legislative
policy to leave the purchaser unpunished"); Hedlund, 165 Wn.2d at 652(noting that
Gebardfs "much older common law rule" has been made a part ofthe Washington
criminal code at RCW 9A.08.020(5)(a)).
In Gebardi, the foundational case for this principle, the Supreme Court
addressed whether a woman who was trafficked for the purpose ofprostitution could
be held criminally liable for conspiring with the trafficker to accomplish her own
prostitution. The statute barring such trafficking^ read, in relevant part.
^ This was originally entitled the White Slave Traffic Act, former 18 U.S.C. § 398
(1910), and was enacted to protect "any woman or girl" from interstate trafficking for
prostitution. A similar statute no longer limited to protecting females and no longer entitled
"White Slave Traffic Act," but instead known as the Mann Acts, is now codified at 18
U.S.C. §§ 2421-2424.
6
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
""Any person who shall knowingly transport. . . any woman or
girl for the purpose of prostitution or debauchery, or for any other
immoral purpose . . .[shall be deemed guilty of a felony]
287 U.S. at 118 n.l (emphasis added)(second alteration in original)(quoting former
18 U.S.C. § 398(1910)). This statute, like RCW 9.68A.050, is silent about whether
the "person" subject to prosecution was meant to include the "woman or girl" who
was trafficked. The Court, however, applied the rule that when Congress legislates
to protect a particular class—^there,the women or girls transported for prostitution—
Congress is presumed to have protected members of that class from prosecution
under the protective statute. Specifically, the Gebardi Court reasoned that the
"failure of the Mann Act to condemn the woman's participation in those
transportations which are effected with her mere consent" was "evidence of an
affirmative legislative policy to leave her acquiescence unpunished." Id. at 123. It
therefore concluded that Congress's "affirmative legislative policy" was to protect
the woman—^to "immuni[ze]" her from criminal liability—and that to subject her to
any form of criminal punishment for her participation in her own exploitation
"would contravene that policy." Id.
To be sure, as the majority notes, the specific holding of Gebardi is that the
government could not prosecute the woman-victim as a coconspirator in the
substantive Mann Act crime. Majority at 10. But that holding was a corollary ofthe
7
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
Gebardi Court's far less controversial conclusion that the government could not
prosecute the woman-victim as a principal. And the Gebardi Court came to that
decision—^that the government could not prosecute the woman-victim whom the
legislation was designed to protect as a principal in her own exploitation—despite
the fact that the Mann Act allowed conviction of"any person," essentially the same
language at issue in this case. 18 U.S.C. § 2421(a). In fact, the government did not
even dispute this common sense conclusion that the victim could not be prosecuted
for the crime as a principal in Gebardi', as that Court said, "[TJhis conclusion [that
the victim-woman cannot be prosecuted as a principal] is not disputed by the
Government here, which contends only that the conspiracy charge will lie though
the woman could not commit the substantive offense." 287 U.S. at 119.
The majority's focus on the fact that Gebardi holds that the government
cannot prosecute a member of the class that the legislature intended to protect as a
conspirator thus undermines, rather than supports, its argument. The inference that
the government is barred from prosecuting a member of the protected victim class,
whom the legislation was designed to protect, as a conspirator flows directly from
the rule that the government is barred from prosecuting a member of the protected
victim class, whom the legislation was designed to protect, as a principal.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
Gray is being prosecuted as a principal in his own exploitation in this
case. The rule that a criminal statute designed for the protection of a particular class
cannot be used to prosecute a member of that protected class for his or her own
victimization (absent specific legislative authorization) thus applies with even
greater force here than it would in the vicarious conspiratorial liability situation.
This is especially true in Washington, since we already have specific
legislative authorization to protect those victimized by crimes from disrespect,
insensitivity, and prosecution. See RCW 7.69.010 (crime victims shall be treated
with "dignity, respect, courtesy, and sensitivity," and crime victims' rights shall be
"honored and protected by law enforcement agencies, prosecutors, and judges in a
manner no less vigorous than the protections afforded criminal defendants"),.030(4)
(mandating that reasonable effort are made to protect victims from harm for
cooperating with prosecution); RCW 9A.08.020(5)("Unless otherwise provided by
this title or by the law defining the crime, a person is not an accomplice in a crime
committed by another person if: (a) He or she is a victim of that crime . . .
."). Subjecting the protected minor in this case to prosecution for his own
exploitation of himself without express legislative authorization conflicts with the
public policy of protecting victims expressed in these statutes.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
C. Because the Legislature Enacted RCW 9.68A.050 To Protect Children
from Sexual Exploitation, We Must Presume That the Legislature Also
Intended To Exempt Those Children from Prosecution for Their Own
Exploitation
RCW 9.68A.050 is identical to the statute interpreted in Gebardi in all
relevant aspects. Both use different words to describe the "person" subject to
prosecution, on the one hand, and the "woman or girl" (in the federal statute) or
"minor" (in the state statute) subject to protection from sexual exploitation, on the
other. Both are designed for the protection ofthe vulnerable class—"woman or girl"
transported for immoral purposes (in the federal statute) and "minor" depicted in
pornography (in our state statute). And both are silent about whether members of
the protected class can be prosecuted under that statute.
Gebardi held that in this situation, the legislature's silence cannot be read as
an intent to prosecute members of the protected class for their own victimization.
Instead, such silence must be read to exempt members of the protected class from
such prosecution. In other words, it shows "an affirmative legislative policy" to
10
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
leave the protected person who participates—here, Gray—"unpunished.'"* Gebardi,
287 U.S. at 123.^
II. The Majority's Interpretation Would Produce Absurd Results
The majority's contrary interpretation 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. 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.
Indeed, the majority's interpretation 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. Gray, diagnosed with Asperger's syndrome, is a prime example of
someone who would benefit more from treatment and specialized services regarding
Gray was not charged with having a hand in exploiting other minors. That would
be a different case.
^ The State argues that "it is ultimately irrelevant whether Mr. Gray could or could
not victimize himself by taking or disseminating such a photograph" because RCW
9.68A.050 does not require a named victim. State's Resp. to Br. of Amici Curiae ACLU
et al. at 6. But the existence of some vietim is critical. Even though the State does not
have to name a victim to prove its case under RCW 9.68A.050, there must still be, as the
State acknowledges,"an actual minor," id, depicted in the image.
11
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
appropriate social behavior than from incarceration or the social isolation of
registering as a sex offender. The majority, however, holds that the statute takes the
punitive approach to the depicted, vulnerable victim child. I can't believe the
legislature intended that absurdity, either.
In fact, our court is required to interpret statutes to avoid such '"unlikely,
absurd, or strained consequences.'" Columbia Riverkeeper v. Port of Vancouver,
USA, 188 Wn.2d 421, 443, 359 P.3d 1031 (2017) (quoting Fraternal Order of
Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148
Wn.2d 224, 239, 59 P.3d 655 (2002));In re Dependency ofD.L.B., 186 Wn.2d 103,
119, 376P.3d 1099 (2016).
It is no answer to say, as the majority essentially does, that those are all
different cases. Majority at 7-8, 15 (emphasizing that this is not a case of teens
sexting to each other, who might deserve more protection). When we interpret a
statute, we have to consider how that interpretation will affect other cases and
whether it will produce absurd results. RCW 9.68A.050 criminalizes "develop[ing]"
or "disseminat[ing]," etc., the minor's sexual depiction, no matter who receives it.
Unless we interpret the statute to exempt the exploited minor from liability for his
or her own exploitation, we are subjecting all children in all the examples listed
12
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
above—as well as the consensual sexting example that the majority tries to
distinguish—^to felony prosecution.
Conclusion
RCW 9.68A.050 is designed to tackle a significant problem: trafficking in
sexual depictions of children. It tackles that problem with severe criminal penalties
for the traffickers but protection for the depicted children. There is a long-standing
and well-accepted rule that when a legislature enacts a criminal law to protect such
a specific class, we cannot interpret that law to permit prosecution (and potential
revictimization) of members of that protected class for their own exploitation—
unless the legislature explicitly says so. The legislature did not say so here. Hence,
the general rule applies: Gray, the depicted minor, cannot be prosecuted under this
statute for disseminating pictures of himself. I would therefore vacate his
conviction.
I respectfully dissent.
13
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)
t
14
State v. Gray
Combined Opinion