2 North Carolina teens hit with child porn charges after consensual sextingThe Washington Supreme Court has upheld the conviction under state child porn laws of a 17-year-old boy who sent a picture of his own erect penis to a 22-year-old woman. The case illustrates a bizarre situation in which Eric Gray is both the perpetrator and the victim of the crime. Under state law, Gray could face up to 10 years in prison for the conviction.
On appeal, Gray’s attorneys had argued that the language of the law was ambiguous—lawmakers did not anticipate a situation like this—and that the law was potentially in violation of the state and the federal constitutions. The court, in a 7-1 ruling, disagreed.
The majority opinion issued Thursday drew a distinction between this case and situations where teens are busted for consensually sexting one another—as Ars reported in 2015. (A Drexel University survey from 2014 found that, while the majority of teens sext with each other, an even higher percentage were unaware that engaging in such behavior could be prosecuted as child pornography.)
“We also understand the worry caused by a well-meaning law failing to adapt to changing technology,” the court wrote.
“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.”
In a dissent, Justice Sheryl Gordon McCloud noted that Gray—who had already been registered as a sex offender for a separate crime and had been diagnosed with Asperger’s Syndrome—would be better served not through incarceration but with proper medical and therapeutic treatment.
“The majority, however, holds that the statute takes the punitive approach to the depicted, vulnerable victim child,” she wrote. “I can’t believe the legislature intended that absurdity, either.”
Tamar Birckhead, a Connecticut-based lawyer who has worked on numerous sexting-related cases, agreed. She e-mailed Ars that the court’s ruling “does stretch credulity to claim that criminal prosecution of kids for sexting photos of their own bodies is a rational response.”
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