2015.61: Unlawful Disclosure or Promotion of Intimate Visual Material

Texas’s new revenge-porn statute, Texas Penal Code Section 21.16, is effective 9/1/2015. It’s unconstitutional (content-based restriction on speech, and no recognized exception applies), but it’s “only” a class A misdemeanor, so defendants will be less motivated to take the time and spend the money to hire me to fight it, and lawyers taking their cases will be less motivated to seek my help:

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 Class A misdemeanor.
(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.

7 Comments

  1. I’m curious to know how this squares with a person’s legal photo copyright, and ability to sell or display his legal property?

  2. Can you please tell me what “effective consent of the depicted person” means? Who can give effective consent other than the depicted person? How does the law apply if a the depicted person was tricked into consenting to distribution to a third party, but never consented to anything beyond that?

    1. That language eliminates the argument that someone else gave effective consent. In you hypothetical, I would say that the depicted person has not given effective consent.

  3. Mr. Bennett,

    I am currently writing a law review article over this topic and I was hoping you could give me a few pointers. I am interested in the arguments for using the first amendment as a defense to revenge porn statutes and the potential problems social media outlets, such as “Snapchat,” have on revenge porn laws. Feel free to email me if you have time, I would love to hear your ideas on anything in regards to revenge porn and the newly enacted law in Texas.

    Best regards,

    Madeline Pricer

    1. There are lots of lawyers who talk a good game when it comes to representing victims of revenge porn, but only a few lawyers who walk the walk. If your daughter is in Texas, she’ll want to talk to Joe Mathew, who is one of the few who walk the walk — he got a $500,000 judgment (reduced to $345,000 on appeal) for a woman who had been victimized by revenge porn.

Post a Comment

Your email address will not be published. Required fields are marked *