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Photographs as Sex Crimes: Changes to the Texas Revenge Porn Law (Texas Penal Code §21.16)

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Do Revenge Porn Laws Violate the First Amendment? Sexual Photograph Crimes and Free Speech

Today, smart phones have made it so easy to take photographs or make videos that the temptation to capture images of a sexual nature is often overpowering for some people.  These images can then be readily stored – and shared – via the internet.

Private intimate photos may be completely consensual, of course.  However, more and more often there are allegations that some individuals are using this new phone technology to take erotic photographs and thereafter circulate them for ulterior motives which may or may not include profit or personal gratification.

Of particular concern are sexual photographs taken during a relationship that are then revealed by one person on the web (or elsewhere) and exposed to the general public without the other’s consent.  This is considered “revenge porn” and it can happen to anyone.

Perhaps you remember when a tweet accompanied by a nude photo of Texas Congressman Joe Barton popped up on an anonymous Twitter account, alleged to be revenge porn of an image taken while the House of Representatives Republican was separated from his wife.  For details see, “Explicit Barton image raises possibility of ‘revenge porn’,” published by CNN on November 24, 2017.

Making Sexual Photographs a Crime in Texas

In response to growing concern of these readily-shared sexual images, Texas joined with other states (e.g., California, New York) in passing laws that make taking some kinds of photographs or videos illegal acts, in violation of the state penal code.  Today, for instance, 46 states have passed some form of revenge porn legislation.  Problem is, in their hurry to pass these photograph sex crime laws, legislatures have exceeded their constitutional boundaries and faced court review that found the statutes in violation of First Amendment free speech protections.

The first attempt at criminalizing “improper photography” by the Texas Legislature failed.  Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014).  The Thompson case resulted in cases being dismissed and appeals successfully overturning convictions based upon the unconstitutional provisions.  For more, read “Creepshot Law Held Unconstitutional: New Cases In Texas Child Pornography Defense.

Down in Austin, lawmakers did not stop just because their legislation had failed to pass the test once given constitutional review in the appellate courts.  The legislature just wrote up some new legislation to finalize and send over to the governor as new criminal laws.

Invasive Visual Recording Law: Texas Penal Code §21.15

In response to Thompson, the Texas Legislature outlawed “invasive visual recording” in Texas Penal Code §21.15, also known as the “Texas upskirt law.”  The statute makes it a crime for anyone to photograph or video “… an intimate area of another person…” (a) without their consent and (b) with the intent to invade their privacy.

For details, read our discussion in “Invasive Visual Recording: Texas Felony Arrest.”

Texas Revenge Porn Law:  Texas Penal Code §21.16

Alongside the new Invasive Visual Recording Law, the lawmakers also passed Texas Penal Code §21.16, known as the Texas Revenge Porn Law.  In 2015, it became a crime (Class A Misdemeanor) to upload and post intimate images (photos or videos) of someone else on the internet unless they gave their consent to do so.

Currently, the Texas Revenge Porn Law reads as follows:

Sec. 21.16.  UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL.  (a)  In this section:

(1)  “Intimate parts” means the naked genitals, pubic area, anus, buttocks, or female nipple of a person.

(2)  “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

(3)  “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.

(4)  “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

(5)  “Visual material” means:

(A)  any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide;  or

(B)  any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

(b)  A person commits an offense if:

(1)  without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

(2)  the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3)  the disclosure of the visual material causes harm to the depicted person; and

(4)  the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A)  any accompanying or subsequent information or material related to the visual material; or

(B)  information or material provided by a third party in response to the disclosure of the visual material.

(c)  A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:

(1)  in return for not making the disclosure; or

(2)  in connection with the threatened disclosure.

(d)  A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person.

(e)  It is not a defense to prosecution under this section that the depicted person:

(1)  created or consented to the creation of the visual material; or

(2)  voluntarily transmitted the visual material to the actor.

(f)  It is an affirmative defense to prosecution under Subsection (b) or (d) that:

(1)  the disclosure or promotion is made in the course of:

(A)  lawful and common practices of law enforcement or medical treatment;

(B)  reporting unlawful activity; or

(C)  a legal proceeding, if the disclosure or promotion is permitted or required by law;

(2)  the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person’s voluntary exposure of:

(A)  the person’s intimate parts; or

(B)  the person engaging in sexual conduct; or

(3)  the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.

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

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

Added by Acts 2015, 84th Leg., R.S., Ch. 852 (S.B. 1135), Sec. 3, eff. September 1, 2015.  Amended by: Acts 2017, 85th Leg., R.S., Ch. 858 (H.B. 2552), Sec. 16(b), eff. September 1, 2017.

Jordan Bartlett Jones’ Challenge to New Revenge Porn Law

The statute was promptly challenged by Jordan Bartlett Jones after he was arrested and charged for violating the new Texas Revenge Porn law.

The trial court did not agree with Mr. Jones, so he appealed to the 12th Court of Appeals in Tyler, Texas.  There, the appeals court agreed with his arguments.  The appeals court found Texas Penal Code §21.16 to be unconstitutional on its face.  Ex Parte Jones, No. 12-17-00346-CR (Tex. App. Apr. 18, 2018).

Now, that ruling is before the Texas Court of Criminal Appeals. This is a major case that is pending before the highest criminal court in the state.  Not only have briefs been filed by both the State of Texas and the defense lawyers for Mr. Jones, but “friends of the court” (amicus curaie) have filed their own arguments for consideration by the CCA, on behalf of both sides:

Amici Supporting Jones

  1. Amici Media Coalition Foundation, Inc.; American Booksellers Association; Association of Alternative Newsmedia; Association of American Publishers, Inc., Freedom to Read Foundation and National Press Photographers Association who create, publish, produce, distribute, sell, advertise in, and manufacture books, magazines, videos, sound recordings, motion pictures, interactive games, photographs, and printed materials of all types, including materials that are scholarly, literary, artistic, scientific, and entertaining, in support of Mr. Jones’ position as a protection of First Amendment rights. Read their brief here.
  2. Benjamin Barber, who is litigating an analogous bill in the State of Oregon (ORS 163.472) entitled “Unlawful Dissemination of an Intimate Image”, specifically to rebut arguments made by the Cyber Civil Rights Initiative in its amicus brief regarding differing legal theories involving privacy, publicity, copyright, emotional distress, cyberspace law, and the First Amendment. Read his brief here.

Amici Supporting the State of Texas

  1. Cyber Civil Rights Initiative (CCRI) files its amicus brief in support of the State of Texas, describing itself as the “leading U.S.-based non-profit organization addressing the growing problem of unauthorized distribution of intimate images.” CCRI operates a 24-hour crisis helpline, works with the Cyber Civil Rights Legal Project to provide pro bono legal services, and lobbies legislatures in the drafting of drafting laws to address “nonconsensual pornography,” its preferred description to “revenge porn.” Read its brief here.
  2. Ken Paxton, Attorney General of the State of Texas files an amicus brief supporting the Texas statute as it has been challenged under the Constitution of the United States, since the attorney general is not acting as counsel or participating as a party in the case. Read his brief here.

New Texas Revenge Porn Law Effective September 2019

While the CCA is considering Mr. Jones’ petition, Austin took further action.  This year, the Texas Legislature revisited Texas Penal Code §21.16, to change specific language in the statute.  It amended (changed) part of the law, its subsection (b).

Effective September 1, 2019, that part of the criminal statute will state as follows:

(b)  A person commits an offense if:

(1)  without the effective consent of the depicted person and with the intent to harm that person, the person[intentionally] discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

(2)  at the time of the disclosure, the person knows or has reason to believe that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3)  the disclosure of the visual material causes harm to the depicted person; and

(4)  the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A)  any accompanying or subsequent information or material related to the visual material; or

(B)  information or material provided by a third party in response to the disclosure of the visual material.

This new law applies only to offenses committed on or after September 1, 2019.  Why was this change passed into law so fast?  The Texas Legislature itself explains why in a House digest of the legislation:

“Concerns have been raised that if current law is not amended, the entire statute could be struck down when the Texas Court of Criminal Appeals considers the case.”

Arrested for Revenge Porn Crime in Texas? What Happens?

What does this mean for anyone who is arrested and charged with violating the Texas Revenge Porn law?  Well, first of all their defense lawyers must carefully consider the charges not only for the usual concerns (violation of search and seizure laws; improper evidence for exclusion; etc.) but for constitutional implications given the flux in which this anti-image legislation continually finds itself.

1.  Two Versions of the Texas Revenge Porn Law

Anyone arrested for violation of the Texas Revenge Porn Law must determine which version of the law applies: the amended version effective in September 2019 or the current version, which is being reviewed the state’s highest criminal court as possibly being unconstitutional.

2.  Evidence Supporting Each Element of the Law

Those facing revenge porn allegations must have the specific facts of their case carefully examined.  Can the prosecution really prove up the elements of this charge?

3.  Substantive Arguments: Free Speech, Discriminatory Enforcement

Moreover, arguments must be considered regarding free speech in the particular situation as well as the reality that this may be a situation of discriminatory police enforcement as well as an instance where there are no real victims, given the circumstances involved.

4.  Possible Overturn of Convictions

Finally, we do not know what the law may or may not be once the Court of Criminal Appeals comes down with its decision in Jones.  It is possible that those who have already been convicted on a Texas Revenge Porn law violation will have a right to have their conviction overturned and their case dismissed (and record expunged) in much the same way that cases were reviewed in the aftermath of the Thompson decision.

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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.”

 


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