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Washington Sexting Laws

Under house bill 1724-2019-20, Washington sexting law. Sexting between teens that involves the exchange of indecent media is a misdemeanor or gross misdemeanor.

Quick take:

  • Washington sexting laws require prosecutors to prioritize diversion for first time youth offenders.
  • Disseminating images of a child below 12 is a Class B felony even if the accused is a teen.
  • Washington sexting laws only apply to teens.
  • Teens convicted of felony exploitation of a minor must register as sex offenders.
  • Viewing a depiction of a child engaged in sexual conduct is a felony.
  • Taking reasonable steps to report child pornography to law enforcement is an affirmative defense if the actor did not solicit or in any way cause the child to create the media.

Washington sexting laws summary

Before introducing sexting laws, teens in Washington accused of sexting faced trial under the state’s child pornography laws. House Bill 1724, “An act relating to juvenile offenses that involve the depiction of minor,” or “responsible teen communications act,” lessened the punishment for sexting between teens. Today, teens convicted under the statute do not have to register as sex offenders.

Section 9.68A.050 of the statute states that a person is guilty of dealing in depictions of a minor if the individual intentionally creates, possesses, or distributes a depiction of a minor engaged in sexual conduct. Sexual conduct refers to acts including masturbation, Sodomy, lewd depiction of intimate areas, and all acts intended for arousal or sexual gratification.  If the accused is above 18, dealing in depictions of a minor is a class B felony. A class B felony in Washington is punishable by up to ten years in prison and a fine of up to $20000.

What is crucial to remember is section C of the statute that states that each photo or video constitutes a separate offense. Also, under the statute, creating, attempting to create, and conspiring to create sexually explicit depictions of a minor is unlawful.

What if the accused is below 18?

Section 4 of the statute makes it unlawful for teens to create, possess, or disseminate sexually explicit images of themselves or someone else. If the person depicted in the image is below 13, the accused is guilty of a first-degree gross misdemeanor. In addition, possessing or distributing Depictions of a Child older than thirteen is a misdemeanor if the accused is below 18.

A gross misdemeanor in Washington is punishable by up to 364 days in county jail and/or a fine of up to $5000. In contrast, a misdemeanor in Washington is punishable by up to 90 days in jail and a $1000 fine.

Note that dealing in depictions of a minor younger than twelve years of age is a first-degree felony, even if the accused is a minor.

House bill 1724-2019-20, what to remember:

  • Selling or financing depictions of a minor is a class B felony.
  • Each depiction or image constitutes a separate offense.
  • Transporting or selling indecent images of a minor across state lines is a federal crime and a class B felony in Washington.
  • Possession of depictions of a minor below twelve years of age is a class B felony even if the accused is below 18.
  • Possession of indecent media depicting a child engaged in sexual conduct/child pornography is a class B felony.
  • Nude selfies constitute child pornography.

Washington sexting laws and teen offender diversion program

Section 8 RCW 13.40.070, states that all complaints shall be referred to the prosecutor. In part, the section reads, quote:

Where a case is legally sufficient the prosecutor shall divert the case if the alleged offense is a misdemeanor or gross misdemeanor or violation and the alleged offense is the offender’s p. 8 HB 1742 1 first offense or violation. If the alleged offender is charged with a  related offense that may be filed under subsections (5) and (8) of 3 this section, a case under this subsection may also be filed.”

According to the Washington State Institute for Public Policy,  Washington state’s teen diversion program alleviates the negative consequences associated with conviction at an early age. Consequently, the program targets first-time offenders.

Enrollment is voluntary, and the court may dismiss charges once the accused has completed the diversion program. Depending on the charges, the length of diversion could be anywhere from two to eight months.

The judge may order monitoring, community service, incarceration, supervision, or other rehabilitative punishments in the juvenile system.

When does sexting turn into child pornography?

Note that teens above 15 accused of a crime that would be a felony if committed by an adult -may face trial in adult court.

In adult court, anyone convicted of a sex crime, including felony exploitation of a child, must register as a sex offender upon conviction.

Under RCW 9.68A.040 “Sexual Exploitation of a Minor,” an individual is guilty of sexually exploiting a minor if the person, forces, threatens, aids, authorizes, or in any way causes a child to create sexually explicit material or engage in sexual conduct.

Consequently, parents and caregivers who allow minors under their care to create indecent images or anyone who aids or uses a child to create indecent images are guilty of a class B felony. Note that the statute also applies to live performances by a child.

What to remember

  • If the victim and the accused are below 18, lewd exhibition of the genitals/breasts/buttocks or pictures depicting a minor in a state of nudity constitute a misdemeanor.
  • If the picture depicts a child engaged in sexual conduct, the crime escalates into a gross misdemeanor or possession of child pornography.
  • State law requires prosecutors to recommend first-time teen offenders to a diversion program.
  • Successful completion of the states’ diversion program will result in charge dismissal.
  • If the victim is below 12, the accused qualifies for enhanced punishment.
  • Teens convicted of sexual exploitation of a minor must register as sex offenders.
  • Teens tried under Washington sexting laws do not have to register as sex offenders.

Reporting of depictions of minor engaged in sexually explicit conduct

RCW 9.68A.080 says that failure to report child pornography is a gross misdemeanor. The statute provides a defense from civil liability for anyone who reports the discovery of child pornography to law enforcement in good faith. Consequently, computer or device repair personnel are legally required to report child pornography.   

What if a minor sends you pictures of herself?

If you did not solicit or in any way cause the child to create the media. We recommend taking reasonable steps to report the activity to law enforcement or anyone with authority over the child -could be the parents or school.

Washington sexting laws and viewing depictions of a minor engaged in sexually explicit conduct

RCW 9.78A.075 states that viewing any image or video of a child engaged in sexual conduct on the internet or a physical copy is a class C felony.

Section 3 of the statute requires the state to consider the title, text, internet history, thumbnails, download history, expert testimony, the number of depictions, and access and control over the device when proving the case.

The statute also requires prosecutors to prove beyond reasonable doubt that the accused initiated the viewing.

What to remember:

  • Each viewed depiction constitutes a separate offense.
  • The section only applies to adult offenders.
  • Viewing depictions of a child engaged in sexual conduct is a class C felony.
  • Prosecutors must prove beyond a reasonable doubt that the accused initiated the activity.

Washington sexting laws and communication with a minor for immoral purpose

Under RCW 9.68A.090, an individual is guilty of violating the statute if the individual contacts a child with intent to make immoral proposals or comments. For a first offense, communicating with a minor for immoral purposes via an electronic device is a gross misdemeanor. Repeat offenses escalate the crime into a class C felony.

Washington sexting laws and disclosing intimate images

Washington’s revenge porn law applies to both teens and adults. A teenager or adult is guilty of unlawful dissemination if the accused intentionally discloses an image obtained under circumstances where the depicted person had a reasonable expectation of privacy.

For a first offense, unlawful dissemination is a gross misdemeanor. A second or third offense, or if the accused has priors, the crime escalates into a class C felony.

Note: victims of revenge porn may take civil action.

References

Other Virginia Laws

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