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Felony Against Sexting Teenager Upheld

By William Vogeler, Esq. on September 19, 2017 | Last updated on March 21, 2019

This material may be unsuitable for children. Now imagine this:

A 16-year-old girl texts a nude selfie to her 17-year-old boyfriend. In Washington, she is charged with a felony for distributing child porn.

It's a bad situation all around, but three judges of the Washington Supreme Court say the law is absurd. It also shows how technology and the law just aren't working.

A Well-Meaning Law

Unfortunately for a boy with Asperger's syndrome, it's a felony and sex registration. In 2013, when he was 17, he texted an unsolicited photo of his penis to a 22-year-old woman.

He also sent her a text that said, "Do u like it babe? It's for you. And for Your daughter babe-Sent from TextFree!"

The woman called police, who interviewed the boy, who admitted it all. He was soon convicted under Washington's law against "dealing in depictions of a minor engaged in sexually explicit conduct."

The case made it to the state supreme court, which upheld the conviction in State of Washington v. Gray. The six-member majority said that, despite "a well-meaning law failing to adapt to changing technology," the law is intended to "destroy the blight of child pornography everywhere."

Teens Who Sext

The dissenters said the majority decision "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," wrote Justice Sheryl Gordon McCloud.

Joined by Justices Steven González and Mary Yu, McCloud said, "we are subjecting all children," even those who consensually sext another child, "to felony prosecution."

The American Civil Liberties Union, which filed an amicus brief in the case, said the decision will expose thousands of minors to criminal prosecution. ACLU spokesman Doug Honig said the decision "leaves the door open for prosecutors to go after any teens who sext."

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