SEATTLE — In a ruling that may have major implications for adult retailers charged with selling obscene material, the Supreme Court of Washington has ruled that defendants possessing any number of images deemed to be "child pornography" are only guilty of one offense.
The decision came in the case of State v. Sutherby, a 2005 case where Randy Sutherby was convicted of rape and molestation of a 5-year-old granddaughter, and also of 10 counts of possession of child pornography: Minors engaged in sexually explicit conduct. However, the trial court ruled at sentencing that because Sutherby had been found to have possessed several images of the same child, that the "unit of prosecution" for the child porn charges should have been per child depicted, not per image, and therefore sentenced Sutherby on only seven child porn counts.
Sutherby appealed his convictions on several grounds, including ineffective assistance of counsel regarding the rape/molestation charges, but also, since the trial court had consolidated five or the original child porn counts into two, that the 10 child porn counts should, based on the trial court's logic, be only one count.
Regarding the "unit of prosecution" argument, the Washington Court of Appeals agreed with Sutherby, and of course, the prosecution appealed that decision to the state's high court.
"The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant from being punished more than once for the same offense," wrote Justice Debra L. Stephens for the 8-1 majority. "Both double jeopardy clauses prohibit multiple convictions under the same statute if the defendant commits only one unit of the crime."
For the majority, the question of one count or 10 was a question of legislative intent, noting that, "If a statute does not clearly and unambiguously identify the unit of prosecution, then we resolve any ambiguity under the rule of lenity to avoid 'turning a single transaction into multiple offenses.'" [Citations removed here and below]
The state anti-child porn statute in effect at the time, RCW 9.68A.070, provided that, "[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony."
Sutherby argued in his appeal that "matter" is ordinarily considered a collective noun, while the prosecution took the position that since "visual or printed matter" is defined in another statute as "any photograph or other material," the legislature meant for each photo to be considered individually. Sutherby, however, replied that the word "any" is also collective, and "means everything, regardless of quantity."
"The [appeals] court noted that the word 'any' has multiple, conflicting definitions, including (1) one; (2) one, some, or all regardless of quantity; (3) great, unmeasured, or unlimited in amount; (4) one or more; and (5) all," Justice Stephens wrote, referring to Webster's Third New International Dictionary. "Based on these definitions, the legislature could have intended to ban (1) one photograph or other material; (2) one, some, or all photographs or other material, regardless of quantity; or (3) one or more photographs or other material. Because it concluded the statute is ambiguous, the Court of Appeals held that the rule of lenity applies; therefore Sutherby's violation of the statute by possessing multiple offending materials at the same time in the same place is subject to only one conviction. We agree with the conclusion of the Court of Appeals that the proper unit of prosecution is one."
The Supreme Court, therefore, remanded Sutherby for resentencing based on a single count of possession of child porn.
Obviously, the high court's decision was based largely on the language of the state's statute, and the concept that the ambiguity contained therein should be decided in favor of the defendant. However, since the Court has determined that the word "any" should be interpreted, absent other evidence, as "one," retailers of adult material may find that the wording of Washington's obscenity statute is subject to being interpreted in their favor as well.
Washington's Revised Code 9.68.140, retarding "promoting pornography," reads, in pertinent part, "A person who, for profit-making purposes and with knowledge, sells, exhibits, displays, or produces any lewd matter as defined in RCW 7.48A.010 is guilty of promoting pornography." (RCW 7.48A.010 defines "lewd matter" as "obscene matter," which in turn follows the descriptions of obscenity laid down in the U.S. Supreme Court's decision in Miller v. California.)
Therefore, it would seem that the phrase "any lewd matter," if the state Supreme Court were being consistent with its Sutherby decision, should now mean that a retailer charged with selling any number of "obscene" materials within the state should be charged with just one count of "promoting pornography."
Of course, that theory remains to be tested, but State v. Sutherby should probably now be looked upon as a victory for the adult industry.