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        CHIEF JUSTICE
                                                       SUSAN L CARLSON
                                                     SUPREME COURT CLERK




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,

                    Respondent,                                No. 93609-9


         V.                                                      En Banc


 ERIC D. GRAY,
                                                     Filed     SEP 1 %
                    Petitioner.



         OWENS,J. — When he 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 ROW

 9.68A.050. He appealed, claiming the plain language ofthe statute does not

 anticipate minors who take and transmit sexually explicit images ofthemselves.

         ROW 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 ifthe minor is disseminating a self-
State V. Gray (Eric)
No. 93609-9




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.

                       FACTS AND PROCEDURAL HISTORY


        In 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.

        T.R. 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 Finger." 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 Finger account, the Spokane County Sheriffs Office confirmed the

messages came from Gray.

        About 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
State V. Gray (Eric)
No. 93609-9




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 photograph.

       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 oftelephone harassment under RCW

9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the

trial court denied.


       In a stipulated facts trial, the court found Gray guilty ofthe 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 offender.

       Gray appealed to Division Three ofthe Court of Appeals, which affirmed his

adjudication. State v. E.G., 194 Wn. App. 457, 377 P.3d 272(2016). It found that
State V. Gray (Eric)
No. 93609-9




"[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 ease was distinguishable from a "ease ofinnocent sharing of sexual images

between teenagers" and so declined to analyze such a situation. Id. Because ofthis, it

found that the statute anticipated Gray's actions and that the statute did not violate

either the federal or state constitutions.

       Gray 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 amiei curiae.

                                         ISSUES


       1.      Does RCW 9.68A.050 allow the State to prosecute a minor for taking

and distributing a sexually explicit photo of himself?

       2.      Is RCW 9.68A.050 impermissibly overbroad or vague in violation ofthe

federal or state constitutions? See U.S. CONST, amends. V,XIV.

                               STANDARD OF REVIEW


       The 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 ofSpokane v. Spokane County, 158 Wn.2d 661,
State V. Gray (Eric)
No. 93609-9




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 offirst

impression in this court.

                                       ANALYSIS


       We must 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.

    1. Gray's Actions Fall under the Dealing in Depictions ofa Minor Statute

       This 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 ofthe entire act"

as well as other related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d
State V. Gray (Eric)
No. 93609-9




1003(2014){c{}xoimg Dep't ofEcology V. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,

43 P.3d 4(2002)).

           A. The Plain Language ofthe Statute Prohibits Transmitting Sexually
              Explicit Images ofa Minor Even Ifthe Minor HimselfSent It

       Here, 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 . . .[kjnowingly 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 ofthe 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 provisions.

       Under 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.
State V. Gray (Eric)
No. 93609-9




Gray is a "natural person" and therefore a person for purposes ofthe 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 meaning.

       Gray 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 disagree.

       As 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
State V. Gray (Eric)
No. 93609-9




minors from the definition of"person" here, Gray was properly charged under this

statute.


       Both 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

ofthose teenagers' First Amendment freedom of expression.

       Though 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 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. Nothmg in the statute indicates that the

"person" and the "minor" are necessarily different entities. Therefore, the

photographer or distributor may also be the minor in the photograph. Because of this.
State V. Gray (Eric)
No. 93609-9




Gray was properly charged with taking and disseminating sexually explicit images of

a minor.


           B. The Legislature's Findings Support Our Plain Reading ofthe Statute

       The legislative findings support our plain reading. As noted above, our

paramount duty is to effectuate the legislature's intent. Elgin, 118 Wn.2d at 555. We

will diverge from a plain reading only if a '"contrary legislative intent is indicated.'"

State V. Jones, 172 Wn.2d 236, 242, 257 P.3d 616(quoting Ravenscroft v. Wash.

Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998)).

       Gray argues that the legislature intended to focus on adult purveyors of child

pornography, not juveniles who voluntarily take photographs oftheir own bodies. He

cites to the legislative findings, stating that when the legislature "drafted the statute it

was concerned about holding individuals who engage in the sexual abuse of children

for their own commercial gain criminally accountable." Suppl. Br. ofPet'r at 9-10

(citing RCW 9.68A.001). We agree that this statute was undoubtedly intended to

address the sexual abuse and exploitation of children by adults. However,the scope

of this statute is larger than what Gray presents.

       The legislature intended to destroy the blight of child pornography everywhere,

from production ofthe images to commercial gain. As Gray notes, the State has a

compelling interest in "protecting children from those who sexually exploit them."

RCW 9.68A.001(2). However,"this interest extends to stamping out the vice of child
State V. Gray (Eric)
No. 93609-9




pornography at all levels in the distribution chain." Id. This includes at its inception.

It is our duty to effectuate the legislature's intent, not rewrite the words the legislature

used. Ifthe legislature intended to exclude children, it could do so by amending the

statute. See LAWS OF 2017, ch. 126, § 3(amending RCW 9.68A.050 to a class B

felony, but making no other alterations). Because the statute was intended to curtail

production of child pornography at all levels in the distribution chain, the statute

prohibits Gray's actions.

       Similarly, the dissent contends that there is a "long-standing and well-accepted

rule" that when a legislature enacts a criminal law to protect a specific class, we

cannot interpret the law to permit prosecution of a member ofthat protected class

"unless the legislature explicitly says so." Dissent at 13. But the dissent

overgeneralizes, relying on cases that deal with coconspirator/accomplice/aider and

abettor liability and factual scenarios entirely different from this one.

       The cases cited by the dissent deal largely with accomplice or coconspirator

liability, rather than an individual acting alone. See Nigro v. United States, 117 F.2d

624,629(8th Cir. 1941)(coconspirator liability); United States v. Shear, 962 F.2d

488,493 (5th Cir. 1992)(employee aider and abettor liability). For example, in

Gebardi v. United States, 287 U.S. 112, 53 S. Ct. 35, 77 L. Ed. 206 (1932), which the

dissent discusses in detail, the Supreme Court addressed whether a woman who was

trafficked for the purpose of prostitution could be held criminally liable for conspiring


                                             10
State V. Gray (Eric)
No. 93609-9




with the trafficker. Additionally, in City ofAuburn v. Hedlund, 165 Wn.2d 645,652,

201 P.3d 315 (2009), the only Washington case cited by the dissent, we addressed

accomplice liability: whether a passenger and sole survivor in a car accident could be

charged as an accomplice to driving under the influence. But here. Gray was not

acting as an accomplice, aider and abettor, or coconspirator; he acted on his own.

       We acknowledge that an exception for victims may apply in other contexts: for

example, for children involved in the manufacture of child pornography. Indeed,

"[wjhen a crime inherently requires 'two to tango,' but the statute is not intended to

punish the victim ofthe crime—as is the case in prostitution or the manufacture of

pornography—federal courts regularly apply a common-law exception to

conspiratorial or accomplice liability." United States v. Daniels, 653 F.3d 399,413

(6th Cir. 2011); see also RCW 9A.08.020(5)(a)(crime victims exempt from

accomplice liability). But this case is not about the manufacture of child

pornography. It is about one individual's distribution of a sexually explicit image to

an unwilling recipient. Contrary to the dissent's view, this court has not adopted a

general presumption that all statutes designed to protect a particular class are

presumed to exempt all members ofthat class from criminal liability, no matter the

circumstances. The dissent paints with too broad a brush.




                                            11
State V. Gray (Eric)
No. 93609-9




   2. The Statute Is Neither Unconstitutionally Overbroad Nor Unconstitutionally
       Vague

       Gray and amici both argue the statute impermissibly infringes on Gray's First

Amendment freedom of speech guaranty, claiming it is overbroad and improperly

curtails protected speech. They also assert that the statute is impermissibly vague

because it opens the door to discriminatory application and does not effectively

inform the public about proscribed conduct. We disagree with both assertions.

           A. The Statute Does Not Improperly Infringe on Gray's First Amendment
              Freedom ofExpression

       Under the First Amendment, a statute is unconstitutionally overbroad if it

prohibits a substantial amount of protected speech. United States v. Williams, 553

U.S. 285, 292, 128 S. Ct. 1830, 170 L. Ed. 2d 650(2008). Thus, the first step in

overbreadth analysis is to construe the challenged statute because "it is impossible to

determine whether a statute reaches too far without first knowing what the statute

covers." Id. at 293. The overbreadth doctrine is '"strong medicine'" and should be

used with hesitation. L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S.

32, 39, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999)(internal quotation marks omitted)

(quoting New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 73 L. Ed. 2d 1113

(1982)). Though there are "'inherent dangers of undertaking to regulate any form of

expression,"' the United States Supreme Court has recognized that some forms of

expression are outside the protections ofthe First Amendment. Ferber,458 U.S. at


                                           12
State V. Gray (Eric)
No. 93609-9




755 (quoting Miller v. California, 413 U.S. 15, 23, 93 S. Ct. 2607, 37 L. Ed. 2d 419

(1973)). Child pornography is one ofthese forms, and it can be constitutionally

prohibited if"the conduct to be prohibited [is] adequately defined by the applicable

state law, as written or authoritatively construed." Id. at 764.

       Here, RCW 9.68A.050 adequately defines the criminal conduct, limiting itself

to the production or distribution of child pornography. It will apply only to an

individual who "[kjnowingly develops,... publishes,...[or] disseminates . ..[any]

visual or printed matter that depicts a minor engaged in an act of sexually explicit

conduct...." RCW 9.68A.050(l)(a)(l). Because this statute proscribes only child

pornography and because child pornography does not enjoy First Amendment

protections, the statute is not overbroad.

       Nonetheless, Gray contends that his actions are unique from child pornography

and, therefore, retain First Amendment protections. He concedes that Ferber placed

child pornography outside the protections ofthe First Amendment. 458 U.S. at 764.

However, he contends that Ashcroft v. Free Speech Coalition has since clarified that

holding. 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002).

       In Free Speech Coalition, the Supreme Court struck down a law that banned

sexually explicit depictions of minors, as well as depictions that appeared to be

minors. Id. at 241. These included computer generated images and depictions of

legal adults pretending to be minors. Id. The Court recognized that the First


                                             13
State V. Gray (Eric)
No. 93609-9




Amendment"does not embrace certain categories of speech, including .. .

pornography produced with real children." Id. at 245-46. However,the Court found

the prohibition ofimages that appear to be, but are not actually, minors improper; any

harm stemming from those false images "does not necessarily follow from the speech,

but depends upon some unquantified potential for subsequent criminal acts." Id. at

250.


       Gray claims his case is similar. Because a fabricated computer image of a

minor does not involve an exploited child, it falls within traditional First Amendment

protections. Consequently Gray argues that just as no children were exploited in Free

Speech Coalition, no child was exploited here and his speech is entitled to First

Amendment protections. He claims any potential harm in his case is just as attenuated

and vague as Free Speech Coalition. Because no harm was done, he should have the

same right as any adult to take voluntary photographs of his own body. We do not

find this argument persuasive.

        We find that RCW 9.68A.050 is not overbroad. It regulates only sexually

explicit images of actual children, which is speech outside the protections ofthe First

Amendment. Because Gray transmitted such an image, his actions do not fall under

First Amendment protection. We affirm the Court of Appeals.




                                           14
State V. Gray (Eric)
No. 93609-9




           B. The Statute Is Not Unconstitutionally Vague and Therefore Not Voidfor
               Vagueness

       Gray finally argues that RCW 9.68A.050 is void for vagueness under the

Fourteenth Amendment to the federal constitution and article I, section 3 of our state

constitution. He and amici argue that if a depicted minor can also be the "person"

under this statute, it does not properly inform the public about what actions are

prohibited. Further, it allows the State to pick and choose which minors may be held

accountable under the statute. They voiced particular concern about teenagers

consensually exchanging explicit material and whether they would fall under the

statutes provisions. However, we find the statute not to be unconstitutionally vague.

       A statute can be void for vagueness in two ways. First, the statute may

"authorize and even encourage arbitrary and discriminatory enforcement." City of

Chicago V. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999).

Second, the statute could "fail to provide the kind of notice that will enable ordinary

people to understand what conduct it prohibits." Id. The most important aspect ofthe

vagueness doctrine is "'the requirement that a legislature establish minimal guidelines

to govern law enforcement.'" Kolender v. Lawson,461 U.S. 352, 358, 103 S. Ct.

1855, 75 L. Ed. 2d 903(1983)(quoting Smith v. Goguen,415 U.S. 566, 574,94 S. Ct.

1242, 39 L. Ed. 2d 605 (1974)). We generally analyze due process claims under




                                           15
State V. Gray (Eric)
No. 93609-9




article I, section 3 in the same way as vagueness claims under the Fourteenth

Amendment. See State v. Jordan, 180 Wn.2d 456,462, 325 P.3d 181 (2014).

       Here, the statute is not void for vagueness. First, it does not invite arbitrary and

discriminatory enforcement. Gray claims that because the State infrequently

prosecutes teenagers who send each other explicit images but chose to prosecute him,

it demonstrates arbitrary enforcement. However,the State is vested with great

discretion in determining how and when to file criminal charges. State v. Korum, 157

Wn.2d 614,625, 141 P.3d 13(2006)(plurality opinion). Gray presents no evidence

the State made the choice to charge Gray for an arbitrary or discriminatory purpose.

       Second, the wording ofthe statute allows a reasonable person to understand

what conduct is prohibited. It states that "[a] person" will be guilty if they transmit

sexually explicit images of"a minor." RCW 9.68A.050(2). On its face, this includes

any person, even a minor taking a picture of himself. Our responsibility is to interpret

the law, not to write it, and here the law is clear.

       Finally, Gray cannot bring a vagueness claim based on vagueness as applied to

others. See Vill. ofHoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S. Ct. 1186,

71 L. Ed. 2d 362(1982). We understand the concern that the State will charge two

teenagers consensually exchanging sexually explicit images of themselves. However,

that circumstance is not before us. Our duty is to interpret the statute as applied to

Gray. Because we are limited to the facts in Gray's case, we decline to analyze


                                             16
State V. Gray (Eric)
No. 93609-9




whether two teenagers could constitutionally be charged for exchanging explicit

pictures,

                                   CONCLUSION


       RCW 9.68A.050 is unambiguous and anticipates Gray's actions. The statute

prohibits any person from developing or disseminating a sexually explicit image of

any minor. Here, Gray sent a sexually explicit picture of himself to an adult woman.

Because Gray is a person and because he sent a sexually explicit picture of himself

while he was a minor, he was properly charged under the statute. Further, the statute

does not unconstitutionally infringe on Gray's freedom of expression, nor is it

unconstitutionally vague. Therefore, we affirm the Court of Appeals.




                                          17
State V. Gray (Eric)
No. 93609-9




WE CONCUR:




              y\_ A A   W   ^




                                18
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)




                                    No. 93609-9


      GORDON McCLOUD, J. (dissenting)—The majority holds that ROW

9.68A.050 contains "nothing to indicate the 'minor'[who is exploited by depictions

of him or her "engag[ing] in sexually explicit conduct"] carmot also be the 'person'

[who is prosecuted for doing the exploiting]." Majority at 7; ROW 9.68A.060(2)(a).

      I disagree. For more than 80 years, the United States Supreme Court, federal

courts, and Washington courts have held that when the legislature enacts a statute

designed for the protection of one class—^here, children depicted in sexually explicit

conduct—it shows the legislature's intent to protect members of that class from

criminal liability for their own depiction in such conduct. E.g., Gebardi v. United

States, 287 U.S. 112, 119, 53 S. Ct. 35, 77 L. Ed. 206 (1932); City of Auburn v.

Hedlund, 165 Wn.2d 645, 652, 201 P.3d 315 (2009). RCW 9.68A.050 was enacted

against that historical backdrop. It was specifically intended to protect children

depicted in pornography. Since the legislature enacted RCW 9.68A.050 to protect

those children, it necessarily follows that those children who are depicted and hence

exploited are exempt from prosecution under RCW 9.68A.050 for such depictions

of themselves.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


       Indeed, if the legislature wanted us to apply a different rule of statutory

interpretation—one that would permit members ofthe protected class to be charged,

prosecuted, convicted, and imprisoned for up to 10 years' for sexually explicit,

exploitative depictions of their own bodies—it was the legislature's duty to

explicitly say that they were departing from the general rule of statutory

interpretation. The legislature did not say so here. Its silence must be construed as

an endorsement ofthe general rule.

       The majority's contrary interpretation of the statutory language produces

absurd results. The majority's interpretation punishes children who text sexually

explicit depictions of their own bodies to adults far more harshly that it punishes

adults who do the same thing. It punishes children who text such depictions oftheir

own bodies to adults even more harshly than adults who text such sexually explicit

photos to children. It even punishes the child who is groomed and led into taking

such photos and forwarding them to the grooming adult! In short, the majority's

interpretation punishes the most vulnerable participant—^the depicted child—no




       ' As the State points out, the legislature recently amended RCW 9.68A.050 to
reclassify second degree dealing in depictions of a minor engaged in sexually explicit
conduct from a Class C felony to a Class B felony. Laws OF 2017, ch. 126, § 3. Class C
felonies are punishable by up to 5 years in prison and/or $10,000 in fines; class B felonies
are punishable by up to 10 years in prison and/or $20,000 in fines. RCW 9A.20.021(l)(b),
(a).
                                             2
State V. Gray (Eric), 93609-9
(Gordon McCIoud, J., dissenting)


matter what personal pressures or personal demons (Gray suffers from Asperger's

syndrome) compelled the child to do it.

        That carmot be what the legislature intended. I therefore respectfully dissent.

                                        Analysis


   I.      The Plain Language of RCW 9.68A.050,Read in Context,Does Not
           Penalize     the     Class     of    Persons—Minors          Depicted     in
           Pornography—Whom The Statute Was Designed To Protect


           A. The Purpose of RCW 9.68A.050 Is To Protect Children from Sexual
              Exploitation by Depiction in Pornography

        As the majority notes,"This court's duty is to 'give effect to the legislature's

intent.'" Majority at 5 (quoting State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314

(1992)). To determine that intent, we begin with the language of the statute. State

V. Larson, 184 Wn.2d 843, 848, 365 P.3d 740(2015). The statute under which Eric

Gray was convicted, RCW 9.68A.050(2)(a), provides in relevant part:

             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:


              (i) Knowingly develops, duplicates, publishes, prints,
        disseminates, exchanges, finances, attempts to finance, or sells any
        visual or printed matter that depicts a minor engaged in an act of
        sexually explicit conduct as defined in RCW 9.68A.011(4)(f) or (g). .


(Emphasis added.) As the majority correctly notes, this statute lacks an explicit

textual limit on what "person" may be prosecuted for exploiting "a minor."

                                           3
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


      But we do not stop with statutory language. Our duty is to figure out the

legislature's intent, so we read that language in context to determine its meaning.

Larson, 184 Wn.2d at 848 (quoting State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d

354 (2010)). And we presume that the legislature is familiar with existing rules of

statutory interpretation. State v. Varnell, 162 Wn.2d 165, 171, 170 P.3d 24(2007)

(citing State v. Bobic, 140 Wn.2d 250, 996 P.2d 610 (2000)); see also Warmington

V. Emp'tSec. Dep't, 12 Wn. App. 364, 367, 529 P.2d 1142(1974).

       Here, the statutory context shows that RCW 9.68A.050(2)(a) was enacted to

protect "minor[s]" from sexual exploitation via depiction in pornography. Chapter

9.68A RCW is titled "Sexual Exploitation of Children." RCW 9.68A.001 explicitly

states that legislative intent: "the prevention of sexual exploitation and abuse of

children" and "the protection of children from sexual exploitation." It focuses on

prosecuting those who gain from exploiting such depicted children: it is intended

"to hold those who pay to engage in the sexual abuse of children accountable for the

trauma they inflict on children." RCW 9.68A.001. That "Legislative findings,

intent" section further clarifies that "[t]he state has a compelling interest in

protecting children from those who sexually exploit them ...." RCW 9.68A.001(2).

The majority agrees: "We agree that this statute was undoubtedly intended to

address the sexual abuse and exploitation of children by adults." Majority at 9. So,
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


while the legislature also intended to "'stamp[] out the vice of child pornography at

all levels in the distribution chain,'" id. (quoting RCW 9.68A.001(2)), the tool it

chose was a statute that protects a particular class: minors vulnerable to sexual

exploitation by their depiction in sexually explicit conduct. Gray is a member of

that protected class. The legislature wrote this statute to protect him. Yet he was

prosecuted because of his status as a member of that class—^that is, because he

himself was depicted while engaged in sexually explicit conduct.

          B. The General Rule Is That a Statute Designed To Protect Members of a
             Particular Class Shows the Legislature's Decision To Exempt Members
             of That Class from Criminal Liability for Their Own Exploitation

       As discussed above, the general rule is that a statute designed for the

protection of a particular class is presumed to exempt that protected class from

criminal liability for their own harm—even when a protected individual was a

necessary and willing participant in his or her own exploitation or harm by the

perpetrator.^ See Gebardi, 287 U.S. at 119; United States v. Shear, 962 F.2d 488,



       ^ I note that the affirmative legislative intent not to punish members of a protected
class does not bestow blanket immunity on individuals merely because of their status as
members of a protected class. See Gebardi, 287 U.S. at 120 ("[the] [ijncapacity of one to
commit the substantive offense does not necessarily imply that he [or she] may with
impunity conspire with others who are able to commit it"); see also Cote H. v. Eighth
Judicial Dist. Court, 124 Nev. 36,40-41, 175 P.3d 906(2008)(a boy who abused his four-
year-old cousin could be criminally liable despite belonging to the class of persons the
statute was meant to protect). A perpetrator may still be liable for harm to another victim
even if he or she is a member of the same statutorily proteeted class as a victim.
                                             5
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


493 (5th Cir. 1992) (employee not criminally liable for employer's OSHA

(Occupational Safety and Health Act of 1970,29 U.S.C. § 666(e))violations because

employees are "members of the particular class for whose special protection OSHA

was enacted"); United States v. Doig, 950 F.2d 411, 414 (7th Cir. 1991)(same);

United States v. Amen, 831 F.2d 373, 381 (2d Cir. 1987)("When Congress assigns

guilt to only one type of participant in a transaction, it intends to leave the others

unpunished for the offense."); Nigro v. United States, 117 F.2d 624, 629 (8th Cir.

1941) ("the omission of Congress to make the act of an addict in purchasing

narcotics to satisfy his cravings an offense is evidence of an affirmative legislative

policy to leave the purchaser unpunished"); Hedlund, 165 Wn.2d at 652(noting that

Gebardfs "much older common law rule" has been made a part ofthe Washington

criminal code at RCW 9A.08.020(5)(a)).

       In Gebardi, the foundational case for this principle, the Supreme Court

addressed whether a woman who was trafficked for the purpose ofprostitution could

be held criminally liable for conspiring with the trafficker to accomplish her own

prostitution. The statute barring such trafficking^ read, in relevant part.



       ^ This was originally entitled the White Slave Traffic Act, former 18 U.S.C. § 398
(1910), and was enacted to protect "any woman or girl" from interstate trafficking for
prostitution. A similar statute no longer limited to protecting females and no longer entitled
"White Slave Traffic Act," but instead known as the Mann Acts, is now codified at 18
U.S.C. §§ 2421-2424.
                                              6
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


             ""Any person who shall knowingly transport. . . any woman or
      girl for the purpose of prostitution or debauchery, or for any other
      immoral purpose . . .[shall be deemed guilty of a felony]

287 U.S. at 118 n.l (emphasis added)(second alteration in original)(quoting former

18 U.S.C. § 398(1910)). This statute, like RCW 9.68A.050, is silent about whether

the "person" subject to prosecution was meant to include the "woman or girl" who

was trafficked. The Court, however, applied the rule that when Congress legislates

to protect a particular class—^there,the women or girls transported for prostitution—

Congress is presumed to have protected members of that class from prosecution

under the protective statute. Specifically, the Gebardi Court reasoned that the

"failure of the Mann Act to condemn the woman's participation in those

transportations which are effected with her mere consent" was "evidence of an

affirmative legislative policy to leave her acquiescence unpunished." Id. at 123. It

therefore concluded that Congress's "affirmative legislative policy" was to protect

the woman—^to "immuni[ze]" her from criminal liability—and that to subject her to

any form of criminal punishment for her participation in her own exploitation

"would contravene that policy." Id.

      To be sure, as the majority notes, the specific holding of Gebardi is that the

government could not prosecute the woman-victim as a coconspirator in the

substantive Mann Act crime. Majority at 10. But that holding was a corollary ofthe


                                         7
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


Gebardi Court's far less controversial conclusion that the government could not

prosecute the woman-victim as a principal. And the Gebardi Court came to that

decision—^that the government could not prosecute the woman-victim whom the

legislation was designed to protect as a principal in her own exploitation—despite

the fact that the Mann Act allowed conviction of"any person," essentially the same

language at issue in this case. 18 U.S.C. § 2421(a). In fact, the government did not

even dispute this common sense conclusion that the victim could not be prosecuted

for the crime as a principal in Gebardi', as that Court said, "[TJhis conclusion [that

the victim-woman cannot be prosecuted as a principal] is not disputed by the

Government here, which contends only that the conspiracy charge will lie though

the woman could not commit the substantive offense." 287 U.S. at 119.


      The majority's focus on the fact that Gebardi holds that the government

cannot prosecute a member of the class that the legislature intended to protect as a

conspirator thus undermines, rather than supports, its argument. The inference that

the government is barred from prosecuting a member of the protected victim class,

whom the legislation was designed to protect, as a conspirator flows directly from

the rule that the government is barred from prosecuting a member of the protected

victim class, whom the legislation was designed to protect, as a principal.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


      Gray is being prosecuted as a principal in his own exploitation in this

case. The rule that a criminal statute designed for the protection of a particular class

cannot be used to prosecute a member of that protected class for his or her own

victimization (absent specific legislative authorization) thus applies with even

greater force here than it would in the vicarious conspiratorial liability situation.

      This is especially true in Washington, since we already have specific

legislative authorization to protect those victimized by crimes from disrespect,

insensitivity, and prosecution. See RCW 7.69.010 (crime victims shall be treated

with "dignity, respect, courtesy, and sensitivity," and crime victims' rights shall be

"honored and protected by law enforcement agencies, prosecutors, and judges in a

manner no less vigorous than the protections afforded criminal defendants"),.030(4)

(mandating that reasonable effort are made to protect victims from harm for

cooperating with prosecution); RCW 9A.08.020(5)("Unless otherwise provided by

this title or by the law defining the crime, a person is not an accomplice in a crime

committed by another person if: (a) He or she is a victim of that crime . . .

."). Subjecting the protected minor in this case to prosecution for his own

exploitation of himself without express legislative authorization conflicts with the

public policy of protecting victims expressed in these statutes.
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)




          C. Because the Legislature Enacted RCW 9.68A.050 To Protect Children
             from Sexual Exploitation, We Must Presume That the Legislature Also
             Intended To Exempt Those Children from Prosecution for Their Own
             Exploitation

      RCW 9.68A.050 is identical to the statute interpreted in Gebardi in all

relevant aspects. Both use different words to describe the "person" subject to

prosecution, on the one hand, and the "woman or girl" (in the federal statute) or

"minor" (in the state statute) subject to protection from sexual exploitation, on the

other. Both are designed for the protection ofthe vulnerable class—"woman or girl"

transported for immoral purposes (in the federal statute) and "minor" depicted in

pornography (in our state statute). And both are silent about whether members of

the protected class can be prosecuted under that statute.

       Gebardi held that in this situation, the legislature's silence cannot be read as

an intent to prosecute members of the protected class for their own victimization.

Instead, such silence must be read to exempt members of the protected class from

such prosecution. In other words, it shows "an affirmative legislative policy" to




                                          10
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


leave the protected person who participates—here, Gray—"unpunished.'"* Gebardi,
287 U.S. at 123.^

   II.      The Majority's Interpretation Would Produce Absurd Results

         The majority's contrary interpretation will produce absurd results. It means

that a child who texts explicit depictions of himself or herself can be punished more

harshly than an adult who does exactly the same thing. I can't believe the legislature

intended that result. It means that a 12-year-old girl who is groomed or lured into

taking and then texting explicit depictions of herself to an adult can be prosecuted

for succumbing to that grooming. I can't believe the legislature intended that result.

         Indeed, the majority's interpretation conflicts with what advances in

adolescent behavioral and neuroscience research inform us: that such a punitive

approach to behavior modification in juveniles is not effective in preventing future

offenses. Gray, diagnosed with Asperger's syndrome, is a prime example of

someone who would benefit more from treatment and specialized services regarding




          Gray was not charged with having a hand in exploiting other minors. That would
be a different case.

         ^ The State argues that "it is ultimately irrelevant whether Mr. Gray could or could
not victimize himself by taking or disseminating such a photograph" because RCW
9.68A.050 does not require a named victim. State's Resp. to Br. of Amici Curiae ACLU
et al. at 6. But the existence of some vietim is critical. Even though the State does not
have to name a victim to prove its case under RCW 9.68A.050, there must still be, as the
State acknowledges,"an actual minor," id, depicted in the image.
                                              11
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


appropriate social behavior than from incarceration or the social isolation of

registering as a sex offender. The majority, however, holds that the statute takes the

punitive approach to the depicted, vulnerable victim child. I can't believe the

legislature intended that absurdity, either.

      In fact, our court is required to interpret statutes to avoid such '"unlikely,

absurd, or strained consequences.'" Columbia Riverkeeper v. Port of Vancouver,

USA, 188 Wn.2d 421, 443, 359 P.3d 1031 (2017) (quoting Fraternal Order of

Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148

Wn.2d 224, 239, 59 P.3d 655 (2002));In re Dependency ofD.L.B., 186 Wn.2d 103,

119, 376P.3d 1099 (2016).

      It is no answer to say, as the majority essentially does, that those are all

different cases. Majority at 7-8, 15 (emphasizing that this is not a case of teens

sexting to each other, who might deserve more protection). When we interpret a

statute, we have to consider how that interpretation will affect other cases and

whether it will produce absurd results. RCW 9.68A.050 criminalizes "develop[ing]"

or "disseminat[ing]," etc., the minor's sexual depiction, no matter who receives it.

Unless we interpret the statute to exempt the exploited minor from liability for his

or her own exploitation, we are subjecting all children in all the examples listed




                                          12
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)


above—as well as the consensual sexting example that the majority tries to

distinguish—^to felony prosecution.

                                    Conclusion


      RCW 9.68A.050 is designed to tackle a significant problem: trafficking in

sexual depictions of children. It tackles that problem with severe criminal penalties

for the traffickers but protection for the depicted children. There is a long-standing

and well-accepted rule that when a legislature enacts a criminal law to protect such

a specific class, we cannot interpret that law to permit prosecution (and potential

revictimization) of members of that protected class for their own exploitation—

unless the legislature explicitly says so. The legislature did not say so here. Hence,

the general rule applies: Gray, the depicted minor, cannot be prosecuted under this

statute for disseminating pictures of himself.       I would therefore vacate his

conviction.


      I respectfully dissent.




                                         13
State V. Gray (Eric), 93609-9
(Gordon McCloud, J., dissenting)




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