The Washington State Legislature has made it a crime to disclose “intimate images”—a photo of sexual activity or of private body parts such as the genitals and the female nipple.
The requirements for adults and juveniles to commit the crime are different. That may subject the bill to an equal protection challenge under the U.S. and Washington constitutions.
Under the new law, passed as House Bill 1272, an adult commits the crime if he or she knowingly discloses an intimate image of another person and 1) obtained it under circumstances where a reasonable person would know that the image was supposed to be private, 2) knew or should have known that the person in the image had not consented to its disclosure, and 3) knew or should have known that disclosure would cause harm to the person in the image.
A person who is less than eighteen years old, though, is guilty of the crime if he or she 1) intentionally and maliciously discloses an intimate image of another person, 2) obtained the image under circumstances in which a reasonable person would know that the image was supposed to be private, and 3) knew or should have known that the person in the image did not consent to its disclosure.
Although the crimes are similar for adults and juveniles, there are two major differences. First, an adult is only guilty if he or she knowingly discloses the intimate image, whereas a juvenile is guilty if he or she intentionally and maliciously discloses the image.
Second, it is unclear whether the requirement that adults know or should know that the disclosure would cause harm to the person depicted is also required for juveniles.
Each requirement to commit a crime is called an “element,” and all elements together constitute the crime. Under this bill, there are two separate crimes because there are different elements for adults and juveniles.
Thus, under HB 1272, juveniles may be convicted of a crime of which adults cannot be convicted. This may violate the Equal Protection Clause of the U.S. and Washington constitutions.
Under the Equal Protection Clause, government entities such as the Washington State legislature may not enact laws that treat people differently based on certain classifications, such as race or gender, without a good reason. There are different standards, called “levels of scrutiny,” that the government must meet for each type of classification. For laws that discriminate based on age, such as HB 1272, the government must have a rational basis for enacting the law.
There may not be a rational basis for the distinctions in HB 1272. If someone makes an equal protection challenge to it, a court will decide.