State v. GrayState v. Gray
FACTS AND PROCEDURAL HISTORY
In 2013, T.R., a 22-year-old woman, went to the Spokane County Sheriff‘s 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 Pinger.” 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 Pinger account, the Spokane County Sheriff‘s 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
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
In a stipulated facts trial, the court found Gray guilty of the 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 of the Court of Appeals, which affirmed his adjudication. State v. E.G., 194 Wn. App. 457, 377 P.3d 272 (2016). It found that
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 amici curiae.
ISSUES
- Does
RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself? - Is
RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions? SeeU.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 of Spokane v. Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006)). Whether thе statute permits prosecution of a minor taking and transmitting a sexually explicit image of himself is a question of first 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 of a 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 nоt read a statute in isolation; we determine its plain meaning by taking into account “the context of the entire act” as well as other related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014) (quoting Dep‘t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)).
A. The Plain Language of the Statute Prohibits Transmitting Sexually Explicit Images of a Minor Even If the Minor Himself Sent It
Here, the statute is unambiguous and we give it its plain meaning.
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.
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 merеly a person who is not yet 18.
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 cоuld 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 of those 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. Nothing 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,
B. The Legislature‘s Findings Support Our Plain Reading of the 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 of their 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. of Pet‘r at 9-10 (citing
The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain. As Gray notes, the State has a compelling interest in “protecting children from those who sexually exploit them.”
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 of that 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
We acknowledge that an exception for victims may apply in other contexts: for example, for children involved in the manufacture of child pornography. Indeed, “[w]hen a crime inherently requires ‘two to tango,’ but the statute is not intended to punish the victim of the 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
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 of Expression
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 of the First Amendment. Ferber, 458 U.S. at 755 (quoting Miller v. California, 413 U.S. 15, 23, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973)). Child pornography is one of these 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,
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 of the 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
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
Gray finally argues that
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 of the 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
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 of the statute allows a reasonable person to understand what conduct is prohibited. It states thаt “[a] person” will be guilty if they transmit sexually explicit images of “a minor.”
Finally, Gray cannot bring a vagueness claim based on vagueness as applied to others. See Vill. of Hoffman 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
CONCLUSION
WE CONCUR:
I disagrеe. 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).
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 of their 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
That cannot 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 dеtermine 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,
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.”
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‘t Sec. Dep‘t, 12 Wn. App. 364, 367, 529 P.2d 1142 (1974).
Here, the statutory context shows that
B. The General Rule Is That a Statute Designed To Protect Members of a Particular Class Shows the Legislature‘s Decisiоn 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.2 See Gebardi, 287 U.S. at 119; United States v. Shear, 962 F.2d 488, 493 (5th Cir. 1992) (employee not criminally liable for employer‘s OSHA (
In Gebardi, the foundational case for this principle, the Supreme Court addressed whether a woman who was trafficked for the purpose of prostitution could be held criminally liable for conspiring with the trafficker to accomplish her own prostitution. The statute barring such trafficking3 read, in relevant part,
”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.1 (emphasis added) (second altеration in original) (quoting former
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 of the
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.
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
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
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
II. THE MAJORITY‘S INTERPRETATION WOULD PRODUCE ABSURD RESULTS
The majority‘s contrary interpretation will produce absurd rеsults. 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
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 of D.L.B., 186 Wn.2d 103, 119, 376 P.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.
CONCLUSION
I respectfully dissent.