Invasive Visual Recording: Texas Felony Arrest

Voyeurism: Arrested for Non-consensual Photography in Texas

Not too long ago, the Texas Court of Criminal Appeals ruled the then-existing criminal statute regarding “improper photography” was unconstitutional.  Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).

The 2014 opinion from our highest criminal court had a tremendous impact on pending prosecutions for serious felonies like child pornography.  Cases had to be dismissed.  The Thompson case also supported appeals by those already convicted, insofar as evidence supporting their convictions now provided grounds for getting those convictions overturned.  For more, read our discussion in “Creepshot Law Held Unconstitutional: New Cases In Texas Child Pornography Defense.”

What was the overriding constitutional argument?  It included a balancing of the First Amendment and its protections for free speech.  The First Amendment protects many images, such as paintings and photographs, even if many find the subject matter disturbing or repellant.  See, e.g., Kaplan v. California, 413 U.S. 115, 119, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) (noting that “pictures, films, paintings, drawings, and engravings” are protected by the First Amendment).

The existing Texas statute was read to be overly broad and in violation of the First Amendment.

Texas Penal Code 21.15

The Texas Legislature’s response was swift.  Within the year (in June 2015), a new statute was enacted to outlaw “invasive visual recording” in this state.  You may recognize the legislation as the “Texas upskirt bill.”

This new law makes it illegal for someone to photograph or video “… an intimate area of another person …” (a) without their consent and (b) with the intent to invade their privacy.

Specially, Texas Penal Code 21.15 states as follows:

INVASIVE VISUAL RECORDING.

(a) In this section:

(1) “Female breast” means any portion of the female breast below the top of the areola.

(2) “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.

(3) “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.

(4) “Promote” has the meaning assigned by Section 43.21. 

(b) A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room; or

(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2). 

(c) An offense under this section is a state jail felony. 

(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law. 

(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person’s consent under that subdivision.

Prosecutor’s Burden of Proof in New Texas Invasive Visual Recording Law

A key difference between the old law and the new one is that Texas Penal Code 21.15 does not require the prosecutor to prove the intent of the accused in taking the photographs or making the video.  There is no need to prove up any alleged arousal or emotional gratification as the reason for making the visual recording.

This makes proving the crime of Invasive Visual Recording easier for the Texas District Attorney’s Office.  It is also important to know that our state prosecutors will look for ways to charge additional crimes alongside the Texas Invasive Recording Law when arrests are made.

Related Criminal Statutes to Invasive Visual Recording

In 2015, the Texas Legislature also passed Texas Penal Code §21.16, making “voyeurism” illegal.  This law applies to “live” observations, not recordings.  If possible, the prosecution will try and build a case based upon both these crimes.

Often, violation of Texas Penal Code 43.26 will be charged alongside these laws (Invasive Recording and/or Voyeurism).  This is the law against Child Pornography.   Here, prosecutors must show the invasive visual recording included images of a minor child.  Then the accused will face charges of violating Texas Penal Code 42.26 as well as Texas Penal Code 21.15 and/or 21.16.

For more on Child Pornography charges, read: “10 Things To Know About Felony Child Porn Charges In Texas.”

What Happens in Illegal, Invasive Recording?

In Texas, it is illegal and considered “Invasive Visual Recording” if someone takes a photo or a video of someone’s “intimate area” (as defined above in the statute) when that person has a “reasonable expectation” that they are not “subject to public view.” As for example, someone in a public bathroom stall or in a store’s clothes changing room.

A smartphone can be used, for instance, or any number of “spy camera” devices.  The crime involves recording as well as broadcasting or transmitting.

It also includes “promoting” the images.  This is when someone manufactures, issues, sells, gives, provides, lends, mails, delivers, transfers, transmits, publishes, distributes, circulates, disseminates, presents, exhibit, or advertises the images —  or just offers or agrees to do so.  See Texas Penal Code 43.21(5).

Key here is that the person being photographed or videotaped has not consented to this being done, and had the expectation of privacy at the time that the images were being recorded.

These crimes can occur in all sorts of situations.  Examples from recent Texas case precedent under the new statute include:

• A man was convicted (upheld on appeal) of videotaping his girlfriend’s daughter taking a shower without her knowledge or consent;
• A man was convicted (upheld on appeal) of using his smartphone to take up-skirt photos or videos of a woman shopping at a Kroger supermarket; and
• A man convicted (upheld on appeal) of using a spy camera attached to a Z-cart in a Goodwill Dressing Room, videotaping both women and girls (minors), making him also liable for violation of Texas child pornography laws.

What is Involved in a Charge of Violating the Invasive Recording Law?

In accusing someone of a crime, prosecutors first consider the statute defining the crime, and then look to the evidence gathered by police investigators.  In cases involving the Invasive Recording Law, it is possible that several different police departments may be involved in gathering evidence.

For instance, hidden cameras may be found in restrooms of restaurants, fast food franchises, grocery stores as well as dressing rooms of various stores that are located in a number of local jurisdictions throughout the Dallas-Fort Worth Metroplex.  Images may be found on the accused’s home computer or phone as well.

Working together, detectives from the various police departments will have (1) organized all the cameras and stored data as well as (2) tried to identify the individuals shown in the images.

This can be complicated.  Search warrants will be needed in order to search the electronics and computer storage.  These warrants must pass constitutional muster upon review.

After the images are obtained, the police must seek out those who have been filmed.  These people must be interviewed and agree to the prosecution insofar as it relates to their images.  They must understand that their identities may be revealed to the public alongside the photos or videos as part of the prosecution of the case.  Many are understandably hesitant to be involved.

After the detectives are finished with their investigations, they will turn over their work to the county district attorney’s office (Dallas County; Tarrant County; etc.).  The prosecutors will then move forward to charge / indict the defendant.

Charges will be based upon each identified victim.  The more individuals are identified and agree to the prosecution, the more charges of violating the Invasive Recording law will be alleged against the defendant.

Camera Equipment is Not Illegal

What about the equipment?  Phones are fine, of course.  Moreover, surveillance tools are not illegal.  In fact, sold as “nanny cams” or “security cams” they are growing in popularity.

A basic internet search will reveal all sorts of spy cameras which are designed to observe people without their knowledge in private places.  Consider the following:

1. EBay offers spy cameras or “nanny cameras” including those disguised as electrical outlets, clothes hooks, and smoke detectors. They are remarkably inexpensive. For example, in September 2018, over 1789 clothes hook spy cameras had been sold by one vendor priced at $8.35.
2. com offers its top ten list of the bestselling hidden cameras of 2018; they include several tiny cameras with night vision, real-time video capabilities, and free apps for easy sync with your smartphone or computer.

Defending Against Invasive Recording Charges

Prosecutors will be looking for some type of conviction in these cases because of their belief it is in the public interest to limit the likelihood the voyeuristic defendant will “re-offend.”  They will want to hold some kind of state supervision over the defendant for as long as possible, as well.  And, of course, they want a victory on their record.

Given the desire of prosecutors to have some kind of conviction, and the reluctance of those caught on camera to proceed with a public trial, plea negotiations are often successful in cases of Invasive Recording Law violations.

The defense strategy will be to minimize the sentence, possibly with probation, if the case isn’t weak enough to be dismissed outright.  This strategy will include:

1.  Evaluating the Prosecution’s Case

First, the defense lawyer will analyze the prosecution’s case, item by item.  Were the search warrants legal?  If some were not, then must that evidence be excluded from consideration through a Motion to Suppress?

Go here for details on Motions to Suppress.

What about the complainants?  Did they agree without reservation to proceeding in the case?  Are they aware their identities will be a part of the public record as being part of an Invasive Recording matter?

2.  Evaluating the Defendant’s Past Criminal History and Current Charges

An aggressive defense will also argue things like no past criminal history or an unrelated criminal past as part of the plea deal.  If the defendant has never had any trouble with the law before, then that should be taken into consideration when assessing any punishment.

3.  Considering the Judge

The defense lawyer will consider the judge who will hear the case and how likely it is that he or she will consider stacking the offenses (to boost the length of the sentence).  Will the judge be sensitive to the unique issues involved in this kind of case?

4.  Mitigating Factors Involved with Voyeurism

Mitigating factors must be evaluated as well.  Specifically, the mental health and status of the accused must be considered when negotiating any sentence or plea deal.

Those who are involved in voyeurism either directly (live) or indirectly (through hidden cameras) may be considered to have a recognized behavioral disorder according to the DSM-5.  See, First, Michael B. “DSM-5 and paraphilic disorders.” Journal of the American Academy of Psychiatry and the Law Online 42.2 (2014): 191-201.

As defined within the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition: DSM-5, published by the American Psychiatric Association, they are considered to have “paraphilitic disorder” including a “voyeuristic disorder,” which necessitates psychological therapy for an extended time period.  This may involve medication as well as psychoanalysis; cognitive therapy; and more.

Defense lawyers can argue that the defendant is in need of psychological treatment, not prison time.  Mental health experts, including psychiatrists or psychologists, may be needed to evaluate the accused and to submit their formal diagnosis and prognosis in writing.  They may be needed as testifying witnesses at any sentencing hearing should plea negotiations fail.

5.  Offering Limitations with Probation

Along with getting necessary treatment, the defense attorney can suggest sentencing include limitations on the defendant in the future.  These are ways to limit the defendant’s freedom without confining him to a state facility.

Here, the defense attorney can suggest a limitation on the ability of the defendant to possess, own, or control any kind of visual recording devices or equipment.  Perhaps sentencing can include prohibiting the defendant from going to the locations where the images were obtained (“no-contact” orders).

The particular kinds of limits to be suggested by the defense will depend upon the particular circumstances of the case.  Any mental health professional involved in the case may have valuable input to provide here, both to the prosecution as well as the judge.

It is possible to negotiate a plea deal for probation in Invasive Recording cases.  The length of probation may be several years, but the accused will avoid jail time.

Under Texas Penal Code 25.15, defendants face sentencing for committing a “state jail felony.” This involves a maximum fine of $10,000 and jail time of up to two years. To learn more about Texas State Jails versus Texas Prisons, go here.

Consider Recent Case Study in Child Porn Case

As an analogy, consider the recent case study we shared dealing with a federal (not state) prosecution of a young man facing serious federal child pornography charges.   Federal sentencing is much more stringent and strict than state procedures, given that the federal system includes the Federal Sentencing Guidelines.

Nevertheless, this young man was able to avoid imprisonment and move forward with his life (including college) after a zealous defense stance for probation that included psychological arguments.

This included Mr. Lowe having his client evaluated with the young man starting treatment as soon as possible.  Evidence from an expert psychologist specializing in sexual disorders was presented at the sentencing hearing.

For details, read “Probation in a Federal Child Porn Case: Case Study By Defense Attorney Michael Lowe.”

As for the judge’s response, you can read the transcript below.  From the bench, the judge explained to Mr. Lowe’s client:

“I’ve given you the biggest break I’ve ever given in the 26 years I’ve been on this bench.”

Read the transcript here:

Sent Hearing Dec 8 by on Scribd

Arrested on Alleged Invasive Visual Recording in North Texas?

If you or a loved one have been charged with violating Texas Penal Code 21.15, the Invasive Visual Recording Law, or you are concerned you may be arrested, then it is important to consider hiring an aggressive criminal defense attorney experienced with sexual crime allegations as soon as possible.

The prosecutors in Collin County, Dallas County, Denton County, and Tarrant County share a viewpoint that these defendants are threats to the public good.  They will be anxious to arrest and to prosecute under the Invasive Visual Recording statute. 

Having a zealous and compassionate criminal defense lawyer to advocate for those facing these kinds of charges is essential.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations.”