What You Think Is Not What You See

By: Wayne C. Fricke; Sept 1996

            In the last issue we addressed Title 9.68A and whether an individual could be convicted under the statute when nothing about the photograph could be considered sexually explicit.  State v. Chester, 82 Wn.App. 422, 918 P.2d  514 (1996), which I had suggested might clarify the law in this area, was decided on June 28, 1996.  The court did indeed reverse Chester’s conviction, although Judges Bridgewater and Morgan did so for different reasons.

            Whereas, Bridgewater, in the court’s opinion, left for another day the issue as to whether the Legislature could criminalize behavior where a child’s nudity is observed for purposes of sexual stimulation of the viewer, he did, consistent with our position, hold that RCW 9.68A.040 requires the perpetrator to take an affirmative act that induces the minor to engage in sexually explicit conduct.

            Judge Morgan, concurring in the judgment, agreed with the defense that the conduct itself was not sexually explicit because the purpose of the exhibition must have been to sexually stimulate the viewer, a purpose that was not present in this case.  Morgan agreed with the defense that to hold otherwise and accept the state’s position would make innocent conduct sexually explicit due only to an unknown observer’s warped state of mind.  Thus, both opinions agree the statute requires that one initially look at the purpose of the behavior portrayed in the photograph.

            Additionally, although a split decision, State v. Chester, has clarified the prior cases dealing with child pornography in this state.  Again, if it was not clear before, it should b clear that the focus of the statute is on the photograph and how that photograph was created, i.e., whether the exhibition prior to the taking of the photograph was for the purpose of one’s sexual stimulation, as opposed to looking at the purpose of the viewer after the photograph was taken.

            The state has sought discretionary review in t his matter, again taking the untenable position that it should be able to prosecute an individual regardless of the content of the photograph.  The Supreme Court has set January 7, 1997, as the date for its consideration of the state’s motion.