Harger: Washington Supreme Court says a child molester can’t be expected to know what ‘sexually exploitive’ means

Our state Supreme Court has decided it’s too ambiguous for a convicted child molester to know what “sexually exploitive” means.

Six justices signed on to that last Thursday.

The man is Jeremiah Jeffries-Porter of Kitsap County. He pleaded guilty to first-degree child molestation, which in Washington means sexual contact with a child under 12. He got 51 months in prison and three years of supervision after that. One rule for that supervision: no “sexually exploitive materials.”

His lawyers challenged that rule. They argued the phrase was too vague to obey, and that it let his therapist or corrections officer decide for themselves what counted. Breaking a supervision rule can land him back in jail, so his lawyers said he deserved to know exactly where the line is.

The court agreed, 6-3.

Nothing says rehabilitation like asking for a map of exactly how close you can get.

This is what it’s come to.

Ask any parent in Kent or Everett what “sexually exploitive” means when we’re talking about a man who molested a child. You’ll get an answer in about four seconds. They’ll tell you: anything that sexualizes a kid.

The majority wrote that no court has ever defined the phrase, and then added, “Neither can we.”

Explicit v. exploitive: the Washington Supreme Court splits hairs

The same sentencing paperwork also bans him from sexually explicit materials, with the state law that defines them spelled out. That rule still stands.

So the whole case came down to two words that look almost alike. “Explicit” has a definition in state law. “Exploitive” doesn’t, at least when it comes to materials.

The majority, led by Justice Sheryl Gordon McCloud, said “exploitive” could mean several things, and some of them reach beyond explicit content. The original sentence didn’t say which meaning applied. It left that to his therapist or his corrections officer. And when the government limits what someone can read or watch, the court said, the Constitution demands more precision than that. As I read it, the Supreme Court of Washington said we need to be careful when telling convicted child molesters what they’re allowed to look at. They have rights, after all.

The state didn’t help. Its lawyers offered one definition in writing and a different one in the courtroom. When a justice asked what the exploitive ban did that the explicit ban didn’t, the state’s lawyer couldn’t say.

So the fight is over everything just short of explicit. I have a simpler rule for a man who molested a child: stay nowhere near the line. No pictures of kids. Not on his phone, not on his laptop, not anywhere. Family photos included.

He’s already shown us what he does with children.

Back in 1998, Bill Clinton told a grand jury it depends on what the meaning of the word “is” is. We’ve been rolling our eyes at that one for almost 30 years.

Our Supreme Court just found its version. It depends on what the meaning of “exploitive” is.

Washington judges now have to spell out every eventuality

The court said a cited statute or a short list of examples could have fixed it.

In practice, a judge sentencing a child molester now has to write a list. Photos? Videos? Drawings? Cartoons? AI-generated images? Every item on that list is one more thing to argue about. Every item left off is an opening for the next appeal.

Chief Justice Debra Stephens saw it coming. Justices Charles Johnson and Helen Whitener joined her dissent. She wrote that the meaning is clear in context. In Washington’s criminal code, “sexual exploitation” shows up in only one place: crimes against children. She also pointed out that the court has long avoided demanding “impossible standards of specificity.”

What the Washington Supreme Court ruling tells victims

The victim in this case was a little girl. A judge wrote that rule to protect children like her once her attacker is back on the street.

I’d ask the six justices in the majority to walk outside the courtroom for a minute and look at real life.

Real life is a little girl who was molested. It’s a family that sat through a prosecution and a guilty plea. And it’s a judge who wrote a rule to keep it from happening to another child.

This is common sense, with real victims.

Inside the Temple of Justice, “sexually exploitive” became a word puzzle. Out here, everybody knows what it means.

So whose rights got the most attention here? The man who molested a child, or the kids this rule was written to protect?

The Washington Legislature can fix this in January

He’s still barred from sexually explicit material. But this same wording has been showing up in Washington sentencing paperwork since at least 2013, and his lawyer told the Supreme Court it’s written into sentences frequently. Expect others to try the same argument. Other child molesters with the same wording in their sentences can bring the same challenge, and judges will have to spell out, case by case, the awful content they can’t look at.

The Legislature comes back in January. Lawmakers can write a definition of “sexually exploitive materials” into state law once. Then every judge can cite it, and nobody has to draft a dictionary into every sentence. Until then, prosecutors should cite the statutes every time.

Washington Supreme Court races put five seats on your ballot

Election Day is Nov. 3. Five of the nine Supreme Court seats are on the ballot this year.

You don’t have to agree with every ruling a justice makes.

But you ought to know how they read plain English.

Charlie Harger is the host of “Seattle’s Morning News” on KIRO Newsradio. You can read more of his stories and commentaries here. Follow Charlie on X and email him here. 

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