Depictions of a Minor Engaged in Sexually Explicit Conduct.

Under state law, a person may be charged with a range of criminal offenses if the person deals in, sends or brings into the state, possesses, or views a depiction of a minor engaged in sexually explicit conduct.  These offenses generally regulate applicable visual or printed matter, and internet sessions where a user views such matter.  Different offenses or penalties may apply depending on the ages of the perpetrator and the depicted minor.

In 2024 the state enacted legislation that expanded these offenses to apply in circumstances involving fabricated depictions of an identifiable minor.  "Fabricated depiction of an identifiable minor" and "fabricated depiction" mean any visual or printed matter that depicts a minor who is identifiable from the matter itself or from information displayed with or otherwise connected to the matter, and that was created or altered by digitization to depict the minor engaging in sexually explicit conduct in which the minor did not actually engage.

Dealing.
A person age 18 or older commits the offense of Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct in the first or second degree if the person knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells such depictions, or if the person possesses such depictions with the intent to develop, duplicate, publish, print, disseminate, exchange, or sell them.  The offense is a class B felony ranked at seriousness level VII if committed in the first degree, or ranked at seriousness level V if committed in the second degree.

A minor commits the offense of Minor Dealing in Depictions of Another Minor Age 13 or Older Engaged in Sexually Explicit Conduct in the first or second degree if the minor knowingly distributes, publishes, transfers, disseminates, or exchanges such depictions.  The offense is a gross misdemeanor if committed in the first degree, or a misdemeanor if committed in the second degree.

A minor commits the offense of Minor Dealing in Depictions of Another Minor Age 12 or Younger Engaged in Sexually Explicit Conduct in the first or second degree if the minor knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells such depictions, or if the minor possesses such depictions with the intent to develop, publish, print, disseminate, exchange, or sell them.  The offense is a class B felony regardless of whether it is committed in the first or second degree.

A minor commits the offense of Minor Financing or Selling Depictions of Another Minor Engaged in Sexually Explicit Conduct if the minor finances, attempts to finance, or sells such depictions.  The offense is a class B felony.

A minor is not liable for financing, attempting to finance, developing, duplicating, publishing, printing, disseminating, exchanging, or possessing depictions of himself or herself.  However, a minor commits the offense of Minor Selling Fabricated Depictions of Himself or Herself Engaged in Sexually Explicit Conduct if the minor sells such depictions.  The offense is a misdemeanor.

Sending or Bringing into the State.
A person commits the offense of Sending or Bringing into the State Depictions of a Minor Engaged in Sexually Explicit Conduct in the first or second degree if the person knowingly sends or causes to be sent, or brings or causes to be brought, such depictions into the state for sale or distribution.  The offense is a class B felony ranked at seriousness level VII if committed in the first degree, or ranked at seriousness level V if committed in the second degree.  A minor is not liable for knowingly sending or causing to be sent, or bringing or causing to be brought, depictions of any minor age 13 or older into the state for distribution.  A minor age 12 or younger is not liable for knowingly sending or causing to be sent, or bringing or causing to be brought, depictions of himself or herself into the state for distribution.

Possessing.

A person commits the offense of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the first or second degree if the person knowingly possesses such depictions.  The offense is a class B felony ranked at seriousness level VI if committed in the first degree, or ranked at seriousness level IV if committed in the second degree.  A person convicted of the offense must also be assessed a $1,000 fee for each depiction or image that constitutes a separate conviction.  A minor is not liable for possessing depictions of any minor age 13 or older.  A minor age 12 or younger is not liable for possessing depictions of himself or herself.

Viewing over the Internet.

A person commits the offense of Viewing Depictions of a Minor Engaged in Sexually Explicit Conduct if the person intentionally views such depictions over the internet.  The offense is a class B felony ranked at seriousness level IV if committed in the first degree, or an unranked class C felony if committed in the second degree.  A minor is not liable for intentionally viewing depictions of any minor age 13 or older over the internet.  A minor age 12 or younger is not liable for viewing depictions of himself or herself over the internet.

Forfeitures and Seizures.

Certain property related to offenses involving depictions of a minor engaged in sexually explicit conduct is subject to seizure and forfeiture, including:  (1) all visual or printed matter that depicts a minor engaged in sexually explicit conduct; (2) all raw materials, equipment, and other tangible personal property of any kind used or intended to be used to manufacture or process such depictions; and (3) all conveyances, including aircraft, vehicles, or vessels that are used or intended for use to transport, or in any manner to facilitate the transportation of such depictions in violation of state law.  A minor who possesses any depiction of any other minor engaged in an act of sexually explicit conduct, or which constitutes an intimate image, forfeits any right to continued possession of such depiction or intimate image, and the court must order forfeiture.

Defenses and Immunities.

State law specifies particular circumstances that do not constitute a defense to certain prosecutions for offenses involving depictions of a minor engaged in sexually explicit conduct.  For example, in a prosecution for dealing in, sending or bringing into the state, or possessing such depictions, it is not a defense that the defendant did not know the age of the depicted minor.  Conversely, state law also specifies particular circumstances that do constitute a defense to certain prosecutions.  For example, in a prosecution for dealing in, sending or bringing into the state, or possessing such depictions, it is a defense, which the defendant must prove by a preponderance of the evidence, that at the time of the offense the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor. 

Certain persons who report a depiction of a minor engaged in sexually explicit conduct to the proper law enforcement agency in good faith are immune from civil liability, if such depiction was discovered while repairing, modifying, or maintaining a computer, or in the course of processing or producing visual or printed matter, either privately or commercially.  Failing to make a report constitutes a gross misdemeanor under specific circumstances.

The available defenses and immunities for offenses involving depictions of a minor engaged in sexually explicit conduct are the same regardless of whether a depiction is fabricated or real, except for the following:

• The prosecutor is required to establish the identity of the alleged victim in a prosecution for an offense involving a fabricated depiction.
• It is not a defense in a prosecution for an offense involving a fabricated depiction that the defendant lacked knowledge of whether the fabricated depiction had been created or altered by digitization.

Statute of Limitations.

A statute of limitations provides an authorized period of time for initiating a prosecution after a crime is committed.  Once the applicable statute of limitations expires, a prosecutor is barred from bringing charges against the alleged perpetrator.  Statutes of limitations vary according to the underlying crime. 

Felony offenses related to dealing in, sending or bringing into the state, possessing, or viewing depictions of a minor engaged in sexually explicit conduct are categorized as sex offenses and must be prosecuted within three years of the commission of the crime.  The statute of limitations for such offenses begins to run from whichever of the following dates is later:

• the date the crime was committed; or
• four years from the date the identity of the suspect is conclusively established by DNA testing or photograph.

Sexual Exploitation of a Minor.

A person commits Sexual Exploitation of a Minor if the person:

• compels a minor by threat or force to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance;
• aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance; or
• being a parent, legal guardian, or person having custody or control of a minor, permits the minor to engage in sexually explicit conduct, knowing that the conduct will be photographed or part of a live performance.

"Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.  To "photograph" means to make a print, negative, slide, digital image, motion picture, or videotape.

Sexual Exploitation of a Minor is a class B felony ranked at seriousness level IX. 

Classification of Crimes.
Crimes are classified as misdemeanors, gross misdemeanors, or class A, B, or C felonies.  While there are exceptions, the classification of a crime generally determines the maximum term of confinement and fine for an offense.  For each classification, the maximum terms of confinement and maximum fines are as follows:

For most felony offenses, the Sentencing Reform Act determines a specific sentence range within the statutory maximum according to a sentencing grid.  The sentencing grid provides a standard range of months for the sentence, based on both the severity, or "seriousness level," of the offense and the convicted person's "offender score," which is based on the person's criminal history.

Depictions of a Minor Engaged in Sexually Explicit Conduct.

The existing criminal offenses prohibiting dealing in, sending or bringing into the state, possessing, or viewing depictions of a minor engaged in sexually explicit conduct are expanded to include circumstances involving any visual or printed matter that was created or altered by digitization to depict a minor engaging in sexually explicit conduct, and that is obscene, regardless of whether the depicted minor is identifiable.  "Obscene" means any matter:

• which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest;
• which the average person, applying contemporary community standards, would find explicitly depicts or describes patently offensive representations or descriptions of sexually explicit conduct; and
• which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.

Defenses and Immunities.

The available defenses for specified offenses involving depictions of a minor are modified as follows:

• The existing statutory provision specifying that it is not a defense to certain prosecutions that the defendant did not know the age of the child depicted in the underlying visual or printed matter is expanded to apply to prosecutions for Viewing Depictions of a Minor Engaged in Sexually Explicit Conduct in the first or second degree, and certain offenses committed by a minor.
• The existing statutory provision specifying that it is a defense to certain prosecutions that the defendant was not in possession of any facts on the basis of which he or she should reasonably have known that the person depicted was a minor is expanded to apply to prosecutions for Viewing Depictions of a Minor Engaged in Sexually Explicit Conduct in the first or second degree, and certain offenses committed by a minor.
• In a prosecution for an offense involving a fabricated depiction where the underlying visual or printed matter is of an identifiable minor, the state is required to establish the identity of the alleged victim.  However, in a prosecution for an offense involving a fabricated depiction where the underlying visual or printed matter is obscene, the state is not required to establish that the depicted minor actually exists.
• In a prosecution for an offense involving a fabricated depiction where the underlying visual or printed matter is obscene, it is not a defense that the defendant lacked knowledge of whether the fabricated depiction had been created or altered by digitization, or that the defendant lacked knowledge of whether the minor depicted actually exists.

The offenses under state law involving depictions of a minor engaged in sexually explicit conduct do not affect any criminal or civil liability an electronic communication service provider or remote computing service may be subject to under federal law.

Statute of Limitations.

The statute of limitations for specified felony offenses related to dealing in, sending or bringing into the state, possessing, or viewing depictions of a minor engaged in sexually explicit conduct is increased to 10 years from the commission of the crime.

Sexual Exploitation of a Minor.

The conduct that constitutes Sexual Exploitation of a Minor is expanded to include when a person knowingly causes a minor to be photographed or part of a live performance which depicts the minor engaged in sexually explicit conduct where the minor is unconscious or unaware of the photograph or live performance.

(In support) Protecting children is getting more complicated and challenging in the age of technology and artificial intelligence.  Although advancing technology offers some benefit, there are downsides too.  This bill's intent section mentions the great societal harm that is attributable to the creation of obscene fabricated depictions, which desensitize viewers and distort perceptions of healthy relationships.  Law enforcement has been inundated by such images, many of which are generated from real images of children.  Currently, making even minor changes to such images may allow a perpetrator to avoid prosecution.

There is no reason to make a policy distinction between digitized depictions and images of actual children, or between identifiable and nonidentifiable minors.  Simply put, child pornography is child pornography.  This bill promotes public safety by removing barriers to prosecuting those who take pleasure or profit in the abuse or exploitation of children, allowing law enforcement and prosecutors to move forward on cases involving obscene fabricated depictions.  This change will not have an impact on work capacity for law enforcement or prosecutors.  In looking at rates of arrests and adjudications, the number of juveniles who were charged with crimes related to child sexual abuse material were low or nonexistent in many counties.

There are no First Amendment issues with this bill because the recognized factors for evaluating obscenity have been included.  Federal case law cited by this bill's opposition is not helpful in evaluating this bill because the statute at issue in the federal case did not have an obscenity analysis.  A subsequently enacted federal statute was upheld as constitutional after adding in that obscenity analysis.

(Opposed) There is a critical constitutional issue with a provision of this bill that allows prosecutions without establishing that a minor actually exists.  Staff incorrectly asserts which cases this provision would apply to.  A federal court previously struck down a statute criminalizing depictions that only appeared to involve minors, ruling that virtual depictions are not intrinsically related to child abuse because no real child is involved.  The court reasoned that child pornography is not outside of First Amendment protections because of the content, but because of the harm caused to a real child.  This bill repeats the same error that was present in the federal statute.  Without demonstrating harm to an identifiable minor, the state may run afoul of the First Amendment.

(In support) Senator Tina Orwall, prime sponsor; James McMahan, WA Assoc Sheriffs and Police Chiefs; Russell Brown, WA Association of Prosecuting Attorneys; John Hillman, Attorney General Office; and Laura Harmon, King County Prosecutor's Office.

Stefan Gubarev, Legislative Youth Advisory Council (LYAC); Lilah Wakefield, Legislative Youth Advisory Board; Kai Bjordahl, Legislative Youth Advisory Council; Aadya Syal; Leah Hong; Joanne Smieja; and Priscilla Hannon.