Even sexting teens can be charged with child pornography

A sexting case could not only be a warning for teens sending risque photos but could result in strict consequences for minors in the future.

The Washington State Supreme Court upheld a child pornography conviction of a 17-year-old boy caught sexting a woman. The teen involved created and sent the photo on his own. It has begged a question that led to the Supreme Court: Can a minor be charged with child pornography if they are the child and they are creating the material?

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“So we have a 17-year-old boy who made a very bad decision to take a picture of himself in a state of arousal and sent it to a 22-year-old woman, not realizing that when he did this he was creating and disseminating child pornography under state law,” said former state Attorney General Rob McKenna.

The boy has Asperger’s. According to the Spokesman Review, he had been harassing the woman for a year with anonymous phone calls before sending the photo. The photo in question came with the message: “Do u like it babe? It’s for you.”

The state laws around child pornography are designed to protect children from being victims, McKenna notes.

“In this case, according to (the boy), he was technically the victim, but he also was the one who took the picture so the law shouldn’t apply to him,” McKenna said. “But the law doesn’t say that if the individual who is depicted in the photography actually took the picture, they are off the hook. It’s not the way the statute is written.”

The boy was convicted on charges of child pornography for sending the photo. The case went all the way to the state’s Supreme Court. This month, that court upheld the conviction with a 6-3 decision. The boy had argued that the law infringes upon the right of free expression under the First Amendment.

“Three of the Supreme Court justices were clearly uncomfortable applying this law to the young man because they argued that this is not what the law was intended for,” McKenna said. “But the other six Supreme Court justices said, ‘Well, this is the way the statute is written.’ They voted to affirm his conviction.”

“I think what we are seeing here is an example of the court doing its job of applying a statute as they find it,” he said. “They looked at the intent of the Legislature as well … legislative intent here was clearly to go after and discourage images of children in sexual situations.”

The boy ended up serving 30 days in jail and community service for the sexting incident.

The decision could affect future sexting cases and be applied to sexting between minors in any situation.

“The statute says that any person who creates and then disseminates an image of a child in this way, and the statute is very detailed about what the image must contain in order to constitute child pornography,” McKenna said. “But any minor who does this is a natural person in the definition of the statute.”

Another example, McKenna notes, is from Thurston County during his time as attorney general. It’s a different situation but again involves minors spreading sexual photos. The prosecutor moved to charge a teenage boy who engaged in sexting with a willing girl.

“He was disseminating the image of her … she sent a nude photo and he spread it around,” McKenna said.

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