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By: Wayne C. Fricke; Oct 1997

     On August 7, 1997 the Washington Supreme Court decided two companion cases, State v. Myers and State v. Chester both of which address the interpretation of RCW 9.68A.040.  The Supreme Court upheld Division II's decision in both of the cases, affirming the conviction of Myers and reversing the conviction of Chester. 

     Both cases involved the filming of underage children, the only difference being that in Chester the person being filmed was unaware of what was going on, whereas in Myers, the child was fully aware of what was going on and was directed to do certain posing.  Ultimately, the thrust of the opinions indicate that the statute as currently written is not unconstitutionally vague or overbroad; however it does not apply to the filming or photographing of underage children where the child is unaware of the camera and henceforth not participating or posing in the actual filming.  As the Washington Supreme Court implicitly noted, to stretch the scope of the statute to fit this fact pattern would potentially result in a vague statute since the language would be "stretched and twisted to the facts not clearly within its scope."

     The court was again quick to point out that the statute does not prohibit all nude photographs of children, relying on its earlier decision, State v. Farmer, 116 Wn.2d 414, 805 P.2d 300 (1991).  However, in the Myers opinion the court noted that "it is unclear when, if ever, videotapes of nude children photographed for the purpose of sexual stimulation of the viewer would fall within the protection of the First Amendment."

     The problem with that last comment, however, is that all nude photographs cold fall under the statute so long as the Defendant took it for his own sexual gratification, perhaps causing some confusion in the decision. 

     It should be noted that the legislature in the last session attempted to add a statute which would have made it illegal to secretly tape minors for sexual gratification.  Two separate bills existed in the House and the Senate, but because it never got out of committee it died by the end of the last session.  One would expect that after the decisions in Myers and Chester that additional bills will come and probably pass the next session to make such conduct illegal therefore minimizing the Chester and Myers' opinions, although if the ultimate legislation attempts to penalize the thoughts of the "producer" and not the conduct exhibited in the videotape, the same constitutional problems that currently exist may arise in the future.  Moreover, because sentencing statutes allow for sexual motivation findings as an enhancement both the courts and legislation could prevent constitutional challenges by crafting a statute preventing filing of unknowing nude children and/or adults without any reference to sexual gratification and then use the sexual motivation enhancement as an added weapon in an appropriate case.