was 17 years old, Eric D. Gray electronically sent an
unsolicited picture of his erect penis to an adult woman. The
woman contacted the police, and Gray was charged with and
convicted of one count of second degree dealing in depictions
of a minor engaged in sexually explicit conduct under RCW
9.68A.050. He appealed, claiming the plain language of the
statute does not anticipate minors who take and transmit
sexually explicit images of themselves.
9.68A.050 prohibits developing or disseminating sexually
explicit images of minors. On its face, this prohibition
extends to any person who disseminates an image of any minor,
even if the minor is disseminating a self- produced image.
Because the statute is unambiguous, we take it on its face
and find that Gray's actions are included under the
statute. We further find that the statute does not infringe
Gray's First Amendment rights, nor is it
unconstitutionally vague. See U.S. CONST, amend. I.
Therefore, we affirm the Court of Appeals.
AND PROCEDURAL HISTORY
2013, T.R., a 22-year-old woman, went to the Spokane County
Sheriffs Office to report a series of harassing phone calls
she had received over the past year. She stated that the
caller used a restricted number and would not provide a name,
but that she believed the caller was male. She also stated
that she believed the caller was Gray.
also reported that she had received two text messages the day
before. The first contained a photograph of an erect penis
and the words "(Eric Gray) picture message sent from
Pinger." Clerk's Papers at 59. The second message
read, '"Do u like it babe? It's for you [T.R.].
And for Your daughter babe-Sent From TextFree!'"
Id. Using the phone number associated with the
messages and additional information from the user's
Pinger account, the Spokane County Sheriffs Office confirmed
the messages came from Gray.
two weeks later, the deputy who took T.R.'s report went
to Gray's house to question him. Gray was 17 at the time
and lived with his parents. He had been diagnosed with
Asperger's syndrome and had a prior adjudication
requiring him to register as a sex offender. Though initially
composed during questioning and believing the sheriff had
come to talk with him about his sex offender registration,
Gray's demeanor quickly became agitated when he learned
the deputy's actual purpose. He admitted that he had been
calling T.R. for the past year and had sent the text
messages. He stated that T.R. used to work for his mother,
that he retrieved T.R's phone number from his
mother's business records, and that he was attracted to
T.R. He also admitted that it was his erect penis in the
State charged Gray in juvenile court with one count of second
degree dealing in depictions of a minor engaged in sexually
explicit conduct under RCW 9.68A.050. It also charged him
with one count of telephone harassment under RCW 9.61.230.
Gray moved to dismiss both charges for insufficient evidence,
which the trial court denied.
stipulated facts trial, the court found Gray guilty of the
second degree dealing in depictions of a minor charge. The
State agreed to dismiss the telephone harassment charge and
chose not to charge him with two counts of misdemeanor
indecent exposure stemming from an unrelated incident. He was
sentenced to 150 hours of community service, 30 days of
confinement, and fees, before being released with credit for
time served. He was again ordered to register as a sex
appealed to Division Three of the Court of Appeals, which
affirmed his adjudication. State v. E.G., 194
Wn.App. 457, 377 P.3d 272 (2016). It found that "[t]he
legislature can rationally decide that it needs to protect
children from themselves by eliminating all child
pornography, including self-produced images that were not
created for commercial reasons." Id. at 468.
The court also suggested that this case was distinguishable
from a "case of innocent sharing of sexual images
between teenagers" and so declined to analyze such a
situation. Id. Because of this, it found that the
statute anticipated Gray's actions and that the statute
did not violate either the federal or state constitutions.
petitioned this court for review, which was granted.
State v. Gray, 187 Wn.2d 1001, 386 P.3d 1082 (2017).
The American Civil Liberties Union of Washington, the
Juvenile Law Center, Columbia Legal Services, and TeamChild
subsequently filed a joint brief as amici curiae.
RCW 9.68A.050 allow the State to prosecute a minor for taking
and distributing a sexually explicit photo of himself?
RCW 9.68A.050 impermissibly overbroad or vague in violation
of the federal or state constitutions? See U.S.
CONST, amends. V, XIV.
first issue here is whether the statute on its face applies
to Gray. We review questions of statutory interpretation de
novo. State v. Bunker, 169 Wn.2d 571, 577-78, 238
P.3d 487 (2010) (citing City of Spokane v. Spokane
County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006)).
Whether the statute permits prosecution of a minor taking and
transmitting a sexually explicit image of himself is a
question of first impression in this court.
first determine whether a "person" under the
dealing in depictions of a minor statute can also be the
"minor" depicted in the images. If so, we must then
determine whether the statute is overbroad in violation of
the First Amendment free speech guaranty or whether the
statute is unconstitutionally vague.
Gray's Actions Fall under the Dealing in Depictions
of a Minor Statute
court's duty is to "give effect to the
Legislature's intent." State v. Elgin, 118
Wn.2d 551, 555, 825 P.2d 314 (1992) (citing Wash. Pub.
Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288, 292,
778 P.2d 1047 (1989)). The clearest indication of legislative
intent is the language enacted by the legislature itself.
State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354
(2010) (quoting State v. Jacobs, 154 Wn.2d 596, 600,
115 P.3d 281 (2005)). Therefore, "if the meaning of a
statute is plain on its face, we 'give effect to that
plain meaning.'" Id. (internal quotation
marks omitted) (quoting Jacobs, 154 Wn.2d at 600).
However, we will not read a statute in isolation; we
determine its plain meaning by taking into account "the
context of the entire act" as well as other related
statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317
P.3d 1003 (2014) (quoting Dep 't of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4
The Plain Language of the Statute Prohibits Transmitting
Sexually Explicit Images of a Minor Even If the Minor Himself
the statute is unambiguous and we give it its plain meaning.
RCW 9.68A.050 prohibits dealing in depictions of a minor
engaged in sexually explicit conduct. In relevant part, it
states that "[a] person commits the crime of dealing in
depictions of a minor engaged in sexually explicit conduct in
the second degree when he or she . . . [k]nowingly develops,
... publishes, ... [or] disseminate[s] ... any visual or
printed matter that depicts a minor engaged in an act of
sexually explicit conduct" RCW 9.68A.050(2)(a).
"Sexually explicit conduct" is a depiction "of
the genitals or unclothed pubic or rectal areas of any minor
... for the purpose of sexual stimulation of the
viewer." RCW 9.68A.01 l(4)(f). A "minor" is
"any person under eighteen years of age." RCW
9.68A.011(5). Finally, a "person" is any
"natural person, " whether an adult or a minor. RCW
9A.04.110(17), .090. Therefore, when any person, including a
juvenile, develops, publishes, or disseminates a visual
depiction of any minor engaged in sexual conduct, that
person's actions fall under this statute's
this statute, the State properly charged Gray for his
actions. When he was 17, Gray took a photo of his erect penis
and sent it, unsolicited, to another person. Gray is a
"natural person" and therefore a person for
purposes of the statute. He was also under the age of 18,
making him a minor under the statute as well. He stated he
was attracted to T.R., and when he sent the picture he
included the phrase "Do u like it, babe?, "
indicating an attempt to arouse the recipient. The picture he
transmitted was, therefore, a visual depiction of a minor
engaged in sexually explicit conduct because it was a picture
of a minor's genitals designed to sexually stimulate the
viewer. This falls squarely within the statute's plain
argues that he cannot be charged under this statute because
the "person" and the "minor" must be two
different people. He states that had the legislature intended
to include the depicted minor under the definition of
"person, " it would have explicitly done so. We
noted above, a "person" is any natural person and a
"minor" is merely a person who is not yet 18. RCW
9A.04.110(17); RCW 9.68A.011(5). Under this statute, there is
nothing to indicate the "minor" cannot also be the
"person." Contrary to Gray's arguments, we find
that had the legislature intended to exclude the
depicted minor from the definition of "person, " it
would have done so as it has in other sections in this
chapter. See RCW 9.68A.101(3)(a) (specifically
excluding minors receiving compensation for sexual conduct
from the definition of a "person" guilty of
promoting commercial sexual abuse of a minor). Because the
legislature has not excluded minors from the definition of
"person" here, Gray was properly charged under this
Gray and amici urge that if we determine a minor can be
charged under this statute for taking and disseminating
sexually explicit pictures of himself, it could have dire
consequences for other minors engaging in
"sexting." They argue that the legislature never
intended to criminalize teenagers consensually exchanging
sexually explicit photographs, opining that doing so would be
an impermissible infringement of those teenagers' First
Amendment freedom of expression.
both parties and amici have briefed the issue, those are not
the facts before us. We understand the concern over teenagers
being prosecuted for consensually sending sexually explicit
pictures to each other. We also understand the worry caused
by a well-meaning law failing to adapt to changing
technology. 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