How To Report Unsolicited Pictures Texas

The Texas offense of Unlawful Disclosure or Promotion of Intimate Visual Material is a controversial new "Revenge Porn" law that restricts what you can do with photographs and videos depicting nudity or sexual conduct. If the photograph is covered nether the law, then this law says it tin't be posted on the internet or sent anywhere else without the depicted person's consent if the individual would be harmed and also could be identified. The law also prohibits using the release of types of photos in a threatening fashion.

Important UPDATE: This police was amended in the 86th Texas Legislative Session, affecting offenses committed on or later September 1, 2019. The amendments affected subsection (b). The changes are described below. Also, this police force (as it was written before the 86th Legislature) was plant unconstitutional by a Texas courtroom of Appeals, and every bit of Jan 2020, that case is awaiting review by the Court of Criminal Appeals.

This law applies to photographs and videos that depict "some other person with the person's intimate parts exposed or engaged in sexual conduct." Passed every bit part of Senate Beak 1135 during the 85th Legislative Session in the Relationship Privacy Human action (the "RPA"), the Texas state legislature created both criminal and civil liabilities¹ for people who disclose so-chosen "Revenge Porn." The police in the Penal Lawmaking also describes three affirmative defenses and describes 2 circumstances that may not be used as a defense.

Have yous been charged with Unlawful Disclosure or Promotion of Intimate Visual Material in Texas? Call sex crimes defense lawyer Paul Saputo at (888) 239-9305 to discuss legal representation.

The police force has been criticized as beingness unconstitutional in that it is a content-based brake on gratis speech without an allowed exception, and I suspect that there volition certainly be some cases where the authorities's lawyers will abuse this law and its constitutionality will eventually be addressed in courtroom.

What is the current Texas law about Unlawful Disclosure or Promotion of Intimate Visual Fabric?

The offense is described in Department 21.16 of the Texas Penal Code.² The statute describes iii different ways to violate the police force. The first mode to violate this police is found in Subsection (b). This subsection was amended in the 86th Texas Legislature by calculation an "intent to harm" element also as a "knowledge" chemical element and took issue in September 2019.³ These changes are indicated below with the added language in brackets and the removed language with strikethrough:

A person commits an offense if:

(one) without the effective consent of the depicted person [and with the intent to impairment that person], the person intentionally discloses visual material depicting some other person with the person's intimate parts exposed or engaged in sexual deport;

(two) [at the fourth dimension of the disclosure, the person knows or has reason to believe that] the visual material was obtained past the person or created nether circumstances in which the depicted person had a reasonable expectation that the visual material would remain individual;

(three) the disclosure of the visual cloth causes harm to the depicted person; and

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

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

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

In order to obtain a conviction under this subsection, the land's attorneys must prove v principal elements: (1) the visual material depicts another person with the person'southward intimate parts exposed or engaged in sexual conduct, (2) the accused person intentionally disclosed the visual material [in the 2019 version, disclosure must be made with an intent to harm], (three) the the disclosure was without the effective consent of the other person, (4) the depicted person had a reasonable expectation of privacy [in the 2019 version, the accused must also know or should accept known near such an expectation], (5) the disclosure causes harm and (six) the disclosure reveals the identity of the depicted person.

This subsection addresses the well-nigh typical revenge porn scenario where a former lover publishes an intimate pic of his or her "ex" on the Internet.

In that location are some interesting things to consider about this definition. First, the use of the discussion "causes" implies that at that place must be some ongoing harm. Second, what does the reasonableness of an expectation of privacy cover? It would obviously cover unauthorized photos of someone in a restroom, but whether anyone would have a reasonable expectation of privacy for photos that they agreed to accept taken seems outlandish. Having someone else accept a picture would crave you to have given upwardly your expectation of privacy to at least one other person. The use of the word "effective" in "effective consent" means that consent does not take to exist expressly authorized, which would go out a lot of leeway in estimation.

Subsection (c) of Department 21.16 describes the 2nd way to violate the law:

A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual cloth depicting another person with the person'south intimate parts exposed or engaged in sexual conduct and the player makes the threat to obtain a benefit:

(one) in return for non making the disclosure; or

(two) in connection with the threatened disclosure.

This subsection makes it illegal to use the sensitive visual material in a threatening manner. The law, all the same, does not apply to every kind of threat. It merely applies to threats made to obtain a benefit, and then farther limited to only threats made to obtain a benefit in exchange for not disclosing the material or threats made to obtain a benefit in connexion with the threatened behavior.

Subsection (d) of Section 21.16 describes the third way to violate the police force:

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

This subsection specifically addresses the Internet, although it applies to other forums for publication as well. The central difference between this subsection of the law and the others is the use of the word "promote." Promote is defined under the police as "to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, broadcast, disseminate, present, exhibit, or advertise or to offering or agree to exercise whatsoever of the higher up."⁴ This is a very wide definition, and it covers a lot more kinds of actions than what is covered under Subsection (b). Subsection (b) only covers the "disclosure" of visual materials.

One grayness area in the law is what the legislature intended by "visual cloth described by Subsection (b)." It is unclear whether the legislature meant "visual cloth depicting some other person with the person'due south intimate parts exposed or engaged in sexual conduct" or the visual fabric that as well meets the criteria of the rest of subsection (a), including (a)(1),(2),(iii) and (four).

What are the affirmative defenses to the law?

In that location are three affirmative defenses to prosecution under this law. Yet, none of them apply to a prosecution under subsection (c)⁵, the use of the visual material equally part of a threat. The showtime affirmative defense force would allow you to avert a confidence if you lot testify that the disclosure of the intimate material was made as role of a police enforcement investigation, medical treatment, legal proceeding or reporting an unlawful activity.⁶

The 2d affirmative defense requires you to prove that the the visual material was made in a "public or commercial setting" and was voluntary, and it is further limited to visual textile only of the person's "intimate parts" or the person engaging in sexual behave.⁷ So if y'all take a photograph of a woman "flashing" someone at a concert, for example, this would be covered under this 2d affirmative defense.

The third affirmative defense⁸ covers the unusual situation where the role player that discloses the photos is an "interactive computer service, as defined by 47 U.S.C. Section 230."⁹

What visual cloth is covered?

Visual fabric includes "any movie, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any picture, photograph, videotape, negative, or slide" and "any disk, diskette, or other concrete medium that allows an image to be displayed on a reckoner or other video screen and any prototype transmitted to a calculator or other video screen by phone line, cablevision, satellite transmission, or other method."^ten

What is the punishment for a conviction?

A conviction for Unlawful Disclosure or Promotion of Intimate Visual Material is punished as a Class A misdemeanor,¹¹ with a maximum possible fine under country law of up to $four,000 and jail time of up to one twelvemonth.

What if the person consented to the creation of the photos or sent them to me?

The police force states that you cannot use the fact that the depicted person sent the photos to you as a defence.¹² It also states that you cannot use the fact that depicted person consented to the taking of the photos or videos or that he or she took them himself or herself.¹³

---

Legal References:

¹ Senate Bill 1135, 84th Legislature, Sections three & five. In Section 2, the RPA also amended the Texas Ceremonious Practice & Remedies Code by adding a Chapter 98B, granting a ceremonious cause of activity to people who desire to accuse someone of the "unlawful disclosure or promotion of intimate visual material."

² Texas Penal Code Section 21.16(b)

³ Business firm Bill 98, 86th Texas Legislature Sections ii, 3(b) and 4

^four Texas Penal Code Section 21.sixteen(2)

⁵ Texas Penal Lawmaking Section 21.sixteen(f)

⁶ Texas Penal Lawmaking Department 21.16(f)(one)

^vii Texas Penal Code Section 21.sixteen(f)(two)

^viii Texas Penal Code Section 21.16(f)(iii)

^nine 47 U.Southward. Code § 230(f)(two) –

The term "interactive figurer service" means whatever information service, system, or access software provider that provides or enables reckoner access by multiple users to a computer server, including specifically a service or organization that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

¹⁰ Texas Penal Code Section 21.16(five)

¹¹ Texas Penal Code Section 21.16(g)

¹² Texas Penal Code Department 21.16(e)(2)

¹³ Texas Penal Lawmaking Section 21.16(e)(1) Meet as well the Committee Report of SB 1135

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Source: https://saputo.law/criminal-law/texas/sex-crimes/unlawful-disclosure-of-intimate-visual-material/

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