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Washington v. Farmer

February 14, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
STEVEN GEORGE FARMER, APPELLANT



En Banc. Guy, J. Dore, C.j., Utter, Brachtenbach, Dolliver, Andersen, Durham, and Smith, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.

Author: Guy

Appellant solicited the services of two juvenile prostitutes. He was subsequently convicted of two counts of sexual exploitation of a minor and two counts of patronizing a juvenile prostitute. This court accepted certification and affirms in part and reverses in part.

Facts

On February 17, 1987, in downtown Seattle, Steven George Farmer solicited the services of Eric N. for the purpose of prostitution. Although Eric indicated he was 16 years old, Farmer instructed him to say he was 15 and to call Farmer "sir". Upon arrival at Farmer's apartment, the two engaged in multiple acts of oral sex. Farmer also took nude photographs of Eric in a variety of sexually suggestive poses. When Eric attempted to leave, Farmer physically restrained him from doing so. Eric eventually fell asleep. He awoke to find Farmer engaged in anal sex with him but chose to do nothing about it, primarily due to Farmer's size. Farmer subsequently paid Eric $20 and allowed him to leave.

In late May 1987, also in downtown Seattle, Farmer solicited the services of Jim L. for the purpose of prostitution. Although Jim could not recall exactly, he believed he told Farmer he was 16. He did specifically remember, however, that Farmer had instructed him to say that he was 14 and to call Farmer "sir". Upon arrival at Farmer's apartment, Farmer took a number of suggestive and sexually explicit photographs of Jim. The two then engaged in anal sex and Farmer subsequently paid Jim $20 for his services.

On May 31, 1987, Farmer was arrested and charged with sexual exploitation of 17-year-old Robert P. for allegedly taking sexually explicit photographs of Robert. While in jail, Farmer enlisted the aid of a friend, Mavis Jones, to retrieve some photographs and drugs from Farmer's apartment. Jones and another friend, Patrick Weller, recovered the drugs as well as a shoe box containing photos of nude boys, which they subsequently destroyed.

Farmer sent Jones and Weller back to his apartment because they had retrieved the wrong photographs. On the return trip Weller recovered the correct photographs, which were of Robert. They were returned to Farmer who allegedly destroyed them.

On January 6, 1988, Farmer was charged with one count of tampering with physical evidence with regard to Robert,

two counts of sexual exploitation of a minor with regard to Jim and Eric, and two counts of patronizing a juvenile prostitute, also with regard to Jim and Eric. The charge relating to Robert was severed from the rest and is not at issue in this case.

Farmer subsequently was convicted by a jury on all four counts. Prior to sentencing, he was ordered to submit to a Human Immunodeficiency Virus (HIV) test on the State's argument that it would corroborate testimony that Farmer was HIV positive prior to his criminal conduct. The results of the test proved positive. Thus the court concluded from the testimony of Jones and Weller and the test results that prior to 1987, Farmer knew or believed he was HIV positive yet had engaged in sexual intercourse with Jim and Eric even though he was aware he might infect the two minors with the virus. The court found this to be deliberate, cruel and malicious conduct constituting a substantial and compelling reason warranting an exceptional sentence. Farmer subsequently was sentenced to 90 months' confinement on all four counts.

This court granted certification of Farmer's appeal and now affirms in part and reverses in part.

Analysis

I

Constitutionality of RCW 9.68A.040

Farmer challenges the constitutionality of RCW 9.68A.040 on grounds of vagueness, overbreadth, prior restraint on free speech and equal protection.

[1] A statute is presumed constitutional. High Tide Seafoods v. State, 106 Wash. 2d 695, 698, 725 P.2d 411 (1986), appeal dismissed, 479 U.S. 1073 (1987) (citing Higher Educ. Facilities Auth. v. Gardner, 103 Wash. 2d 838, 843, 699 P.2d 1240 (1985)). The party challenging the statute has the burden of proving its unconstitutionality beyond a reasonable doubt, as well as rebutting the presumption that all legally necessary facts exist. High Tide Seafoods, at 698. If

possible, the statute should be construed to be constitutional. High Tide Seafoods, at 698.

A

Vagueness

[2] Initially, Farmer must establish he has standing to challenge the vagueness of the statute. State v. Sherman, 98 Wash. 2d 53, 56, 653 P.2d 612 (1982). Generally, one is required to claim the statute is vague as to one's own conduct. Sherman, at 56. Farmer fails to provide argument or authority as to how RCW 9.68A.040 is unconstitutionally vague as to his own conduct. Instead, he relates the alleged vagueness to the conduct of third parties. Consequently, we hold Farmer has no standing to bring a vagueness challenge; therefore, this issue will not be considered.

B

Prior Restraint

Farmer argues that because RCW 9.68A.040 is unconstitutionally vague, it acts as a prior restraint on the right to free expression provided by article 1, section 5 of the Washington State Constitution.

Because Farmer lacks standing to challenge the vagueness of the statute, that issue was undecided. Therefore, we have no basis on which to consider whether the statute constitutes a prior restraint on free expression. Thus, the issue will not be considered.

C

Overbreadth

Farmer challenges RCW 9.68A.011(3)(e) as overly broad because it does not contain the words "lewd" or "lascivious" in its definition of sexually explicit conduct.

RCW 9.68A.011(3)(e) provides:

(3) "Sexually explicit conduct" means actual or simulated:

(e) Exhibition of the genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer . . . .

The essence of Farmer's argument is that: (1) nudity is not harmful; (2) the statute purports to prohibit all nudity; and (3) therefore, because the terms "lewd" or "lascivious" have recognized meanings relating to obscenity for the purpose of analyzing nudity, their exclusion from the statute makes it overly broad.

[3, 4] Farmer's position does not follow from the express language of the statute. The statute does not purport to prohibit all nudity. Further, Farmer fails to provide rational argument or authority as to why the terms "lewd" or "lascivious" must be included in the definition of sexually explicit conduct. Moreover, obscenity was not at issue in Farmer's case and, therefore, his reliance upon it is misplaced. Consequently, we find Farmer fails to show the statute is overly broad and uphold its constitutionality.

D

Right to Privacy

Farmer argues the Legislature has granted 16- and 17-year-olds the right to engage in private sexual activity. Therefore, he maintains they have a First Amendment right to engage in sexual activity with whomever they wish. As such, the State could not have any legitimate interest warranting infringement upon this fundamental right because such conduct is lawful. In essence, Farmer suggests that because Jim and Eric could allegedly consent to having sexual activity with him, his actions could not be unlawful.

[5] We disagree. Initially we find Farmer lacks standing to raise this challenge. In order to challenge the constitutionality of a law, the person or party challenging the law on behalf of itself or a representative class must show the particular action complained of has operated to the person or party's own prejudice. High Tide Seafoods, at 701. Farmer's standing therefore would arise where the statute affected his right to privacy and right to engage in sexual activity. However, he may not obtain standing by challenging the statute based upon how it affected Eric's and Jim's right to privacy.

[6, 7] Finally, Farmer's argument that the State has no legitimate interest in regulating the sexual conduct of children where it infringes upon their right to privacy is in error. Our courts have recognized the right to privacy is not without its limitations. State v. Davis, 53 Wash. App. 502, 504, 768 P.2d 499, review denied, 112 Wash. 2d 1014 (1989). The "prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.'" Davis, at 504 (quoting New York v. Ferber, 458 U.S. 747, 757, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982)). Therefore, the State's interest in protecting its children from sexual exploitation is sufficiently compelling to justify prohibiting possession of child pornography. Davis, at 505; see also Felton v. State, 526 So. 2d 635 (Ala. Crim. App. 1986), aff'd, 526 So. 2d 638 (Ala. 1988); State v. Meadows, 28 Ohio St. 3d 43, 503 N.E.2d 697 (1986), cert. denied, 480 U.S. 936 (1987). Similarly, we hold that the State's interest in protecting its children from sexual exploitation and abuse justifies regulating their sexual conduct even where it infringes upon the right to privacy.

E

Equal Protection

Farmer argues RCW 9.68A.110(1) exempts from consideration the lawful sexual conduct of married couples. Therefore, he maintains that because unmarried 16- and 17-year-olds are included within the statute's proscriptions, it treats them differently than married couples and, consequently, violates their right to equal protection.

We disagree. Initially we find Farmer fails to provide argument or authority showing 16- and 17-year-olds comprise a cognizable class for the purpose of an equal protection challenge. Moreover, RCW 9.68A provides that all minors under the age of 18 fall within its confines. See RCW 9.68A.001; RCW 9.68A.011(4). Therefore, if ...


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