How Is Texting a Dick Pic Like Masturbating in a Person’s Presence?–State v. Decker

My apologies for the indelicate headline. If you’re reading this because you’re hoping for some salacious insights regarding sexting, dick pics or masturbation, this post will disappoint you. An obvious protip: taking advice from a law professor on such topics is meshuggeneh.

The Facts

MJ was 14. She babysat for a couple. Decker was a housemate of that couple and a Facebook friend of MJ. One night around 1am, MJ and Decker exchanged Facebook messages. To me, this is the key exchange:

Decker @ 12:55 a.m.: Ok we’ll imam [sic] finished what I just started before I said hey
MJ @ 12:58 a.m.: what do you mean? [smiley face emoji] [FN]
Decker @ 12:59 a.m.: Just kinda [sic] a nightly ritual to stress before sleep
MJ @ 1:00 a.m.: what is?
Decker @ 1:00 a.m.: What I do before I sleep every night
MJ @ 1:01 a.m.: well what do you do?
Decker @ 1:02 a.m.: It’s embarrassing kinda [sic]

[FN] This is another example of how a court textually characterizes an emoji and, in doing so, creates additional ambiguity and leaves out important information. I discuss this phenomenon in my Emojis and the Law paper.

MJ thought Decker was meant smoking weed. It is implied, but not stated, that instead Decker was referring to masturbation before bedtime, although it’s also possible Decker meant that he sexted or engaged in online virtual sex with a partner before bedtime.

At 1:03 am, Decker sent MJ a dick pic. At 1:04, Decker sent this follow-up:

F–k nooopopooool sh-t
My bad damn dn
How do I delete damn
Sorry pops that was the phones fault
This g-d d-mn phone I’m so sorry was
chatting with an old friend sorry!!!!!.

A jury convicted Decker of fifth-degree criminal sexual conduct and indecent exposure. On the sexual conduct charge, the judge sentenced Decker to a year in prison with 10 months suspended (so a net prison sentence of 2 months assuming Decker met all of the conditions). Apparently the judge did not sentence Decker on the indecent exposure charge. The appeals court affirms.

The Appellate Court’s Analysis

Let’s look more closely at the sexual conduct conviction. The crime applies to defendants who “engage in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.” As you can see, there are two references to “presence.” This raises the venerable Internet Law question about when virtual/online presence is equivalent to physical presence. The appellate court essentially ignores the decades of voluminous literature on Internet exceptionalism and the possible differences between physical and virtual presence.

Instead, the court conducts a mundane and uninspired typical appellate analysis. The court references the legislative history:

Because the legislature has amended the law to include a subsection that does not require touching for a conviction of fifth-degree criminal sexual conduct, we may presume that it intended to expand the definition of conduct that may support a conviction of that offense. And that expansion supports a broader definition of “present.”

The court cites an analogous Supreme Court precedent:

This interpretation is consistent with the Minnesota Supreme Court’s decision in State v. Stevenson, 656 N.W.2d 235, 239 (Minn. 2003). In Stevenson, the supreme court interpreted the phrase in subsection 2, “in the presence of a minor,” to require “only . . . that the accused’s conduct be reasonably capable of being viewed by a minor.” Thus, the supreme court upheld the defendant’s conviction of attempted fifth-degree criminal sexual conduct based on his act of masturbating in a truck parked near a playground where children were playing, even though the children did not actually view the defendant’s conduct.

The court then briefly turns to policy:

Noncontact sex offenses with a child may act as a precursor to actual sexual contact or change a child’s views of sex and sexual relationships….Thus, the legislative policy that supports protecting children from an actor’s explicit sexual behaviors in their physical presence supports shielding them from such conduct in the virtual world as well.

The court seems uninterested in the possibility that Decker mistakenly sent MJ the message:

it is undisputed that Decker was aware of M.J.’s age based on his previous acquaintance with her and that he specifically directed his communication toward her, knowing that he was sending an explicit photo to a 14-year-old. His reaction immediately after sending the photo also shows that he was aware of what he had done.

The court adds that the technology’s operation seems to support its conclusion:

the photo was sent in the context of a continuing conversation when Decker and M.J. were both viewing their phones. And only one minute elapsed between when Decker took the photo and when it reached M.J.’s phone.

Though the lower court didn’t impose a separate sentence for the indecent exposure conviction, the court says these technology facts are sufficient to uphold that conviction too.

Implications

I’ll start with the obvious: sending dick pics is almost never a good idea. The opinion doesn’t say who was the alternate intended recipient of Decker’s dick pic and whether that person would have welcomed it. Even if so, as we’ve seen so many times, the recipient of voluntarily shared pornography can easily turn on the sender; or the recipient (or sender) can be hacked and the images can leak online anyway. And if the alternate intended recipient hadn’t explicitly requested the dick pic, it’s likely the recipient would have been nonplussed by its receipt *at best*.

The case is another reminder that you should ALWAYS check, double-check, and triple-check who you are messaging–ESPECIALLY when the message contains anything remotely sensitive. Most of us have had that awful pit-in-the-stomach feeling when we’ve replied to all with a snarky or confidential comment instead of sending a direct reply to the sender. We go through the five stages of grief very quickly, just as Decker’s 1:04 message signaled. As the modern maxim goes: “Dance Like No One is Watching; Email Like It May One Day Be Read Aloud in a Deposition.” Giving Decker the benefit of the doubt, he is guilty of being sloppy about juggling simultaneous Facebook conversations while circulating a highly sensitive image very late at night. The law professor says: this is “not recommended.”

We don’t have enough information to judge whether Decker really did make a mistake in the intended recipient of the dick pic. His 1:04 message, sent so quickly after sending the dick pic, provides some evidence that Decker did not mean to send MJ the dick pic. However, that could have been a pretext. As the court suggests, sending a dick pic to a minor can be part of grooming the minor for sex, especially in the context of the Decker-MJ Facebook chatter that was vaguely flirty. The jury presumably heard much more evidence about Decker’s relationship with MJ and possibly the intended recipient, and the jury’s conclusion suggests they didn’t believe Decker. That deserves some deference.

Still, I’m troubled by this ruling. First, if Decker really did accidentally misdirect the dick pic, he will be sitting in jail for 2 months for that mistake. That seems like a harsh outcome–if it was an accident. Second, he wasn’t prosecuted for disseminating pornography to minors, he was prosecuted for showing his penis in MJ’s “presence.” For me, equating the two crimes makes no sense. The exposure to a person in physical space is far more graphic than a dick pic online–at minimum, there is much more information (such as facial expressions) communicated in person than in a tightly cropped dick pic. Further, an in-person encounter contains the implied threat (even if unlikely) of potentially imminent violence and sexual abuse that are wholly lacking online. (This made me think of the Drahota and R.D. cases involving the physicality of “fighting words”). There are also the possibilities of awkward eye contact and uncertainty about how to physically retreat from the situation. These attributes would all be true for the person masturbating near a school, even if the kids don’t see him, so the court could have distinguished the Supreme Court precedent if it wanted to. I might understand if the court made a technological distinction between a Facebook live video (sent to a minor) and a static photo, but the court’s analysis would make no such distinction.

I’m not sure if Decker will appeal this case to the Minnesota Supreme Court, but it seems like a good case for such an appeal. At minimum, I would hope the Supreme Court would look more carefully at the policy implications of physical vs. virtual presence. We might have thought that issue had been worked out by 2017, but apparently more work needs to be done.

Case citation: State v. Decker, 2017 WL 1833239 (Minn. Ct. App. May 8, 2017).