Exploring the Controversial “Revenge Porn” Law in Texas
The state of Texas has introduced an offense known as Unlawful Disclosure or Promotion of Intimate Visual Material, which is commonly referred to as the “Revenge Porn” law. This law places restrictions on the sharing and dissemination of photographs and videos that depict nudity or sexual conduct. In order to protect individuals from harm and potential identification, it is now required that the depicted person provides consent before these intimate visuals are posted online or shared in any other way. Moreover, the law prohibits the use of such materials as a means of making threats against others.
An In-Depth Look at the Legislative Background
The Unlawful Disclosure or Promotion of Intimate Visual Material law was enacted as part of Senate Bill 1135 during the 85th Legislative Session, within the framework of the Relationship Privacy Act (RPA). It introduces both criminal and civil liabilities for individuals involved in the disclosure of what is commonly referred to as “Revenge Porn.” The Penal Code also outlines three affirmative defenses while specifying two circumstances that cannot serve as a defense.
However, it is important to note that since its inception, this law has faced significant criticism, mainly due to concerns over its constitutionality and its perceived limitations on free speech. It is expected that these constitutional aspects will be addressed in court cases where the law is potentially abused by government lawyers.
Decoding the Current Texas Law on Unlawful Disclosure or Promotion of Intimate Visual Material
Section 21.16 of the Texas Penal Code defines the offense in three different ways. The first way, described in Subsection (b), has been amended during the 86th Texas Legislature to include elements of intent to harm and knowledge. The updated version, effective from September 2019, now reads as follows:
A person commits an offense if, 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. 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. The disclosure of the visual material causes harm to the depicted person, and the disclosure reveals the identity of the depicted person in any manner, including through any accompanying or subsequent information or material related to the visual material, or information or material provided by a third party in response to the disclosure of the visual material.
In order to secure a conviction under this subsection, the prosecution must prove five main elements: the visual material depicts another person with intimate parts exposed or engaged in sexual conduct; the accused person intentionally disclosed the visual material with the intent to harm (added in the 2019 version); the disclosure was made without the effective consent of the other person; the depicted person had a reasonable expectation of privacy (knowledge or should have known in the 2019 version); the disclosure causes harm; and the disclosure reveals the identity of the depicted person.
This subsection provides a framework for addressing the most common scenario involving revenge porn, where an ex-partner publishes an intimate picture of their former lover on the Internet.
It is worth noting that this definition raises some interesting questions. Primarily, the use of the word “causes” suggests that there must be ongoing harm resulting from the disclosure. Additionally, the reasonableness of an expectation of privacy is ambiguous. While it would undoubtedly cover unauthorized photos taken in restrooms, it seems unlikely that someone would have a reasonable expectation of privacy for photos they willingly posed for. By allowing another person to take their picture, they are effectively relinquishing their expectation of privacy to at least one other party. Moreover, the term “effective consent” suggests that consent does not need to be explicitly authorized, leaving room for differing interpretations.
Subsection (c) of Section 21.16 provides an alternative way of violating the law:
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 in return for not making the disclosure or in connection with the threatened disclosure.
This subsection criminalizes the use of sensitive visual material as a means of making threats. However, it is important to note that the law only applies in cases where threats are made to obtain a benefit, specifically in exchange for refraining from disclosing the material or in connection with the threatened behavior.
Subsection (d) of Section 21.16 outlines the third way in which the law can be violated:
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.
Unlike the previous subsections, this section specifically addresses actions carried out on the internet, although it is also applicable to other platforms for publication. The significant difference lies in the use of the word “promote,” which encompasses a broader range of actions than the mere “disclosure” covered under Subsection (b). Promotion is defined by law as “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.”
One aspect of the law that remains unclear is the definition of “visual material described by Subsection (b).” It is uncertain whether the legislature intended to refer to “visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct” or if it also encompasses material that meets the criteria outlined in the rest of Subsection (a), which includes (a)(1), (2), (3), and (4).
Understanding Affirmative Defenses Under the Law
There are three affirmative defenses provided under this law, although none of them apply to cases falling under subsection (c), which involves the use of visual material as part of a threat. The first defense allows individuals to avoid conviction if they can demonstrate that the disclosure of the intimate material was made as part of a law enforcement investigation, medical treatment, legal proceeding, or reporting an unlawful activity.
The second defense requires individuals to establish that the visual material was produced in a “public or commercial setting” and was voluntary. Furthermore, this defense only applies to visual material that exclusively features the person’s “intimate parts” or the person engaged in sexual conduct. For instance, if someone takes a photograph of a woman “flashing” someone at a concert, it would be covered under this second affirmative defense.
The third defense pertains to cases where the actor disclosing the photos is an “interactive computer service” as defined by 47 U.S. Code § 230. This defense refers to any information service, system, or access software provider that enables multiple users to access a computer server, including services or systems that provide internet access or are operated by libraries or educational institutions.
Determining the Scope of Visual Material Covered by the Law
The term “visual material” encompasses a wide range of mediums, including films, photographs, videotapes, negatives, slides, and any photographic reproductions that incorporate such mediums. Additionally, it includes physical media that allows images to be displayed on computer or video screens, as well as images transmitted through telephone lines, cables, satellite transmissions, or any other method.
Penalties for Violating the Law
A conviction for Unlawful Disclosure or Promotion of Intimate Visual Material is classified as a Class A misdemeanor. As such, the maximum penalties under state law include a fine of up to $4,000 and a jail sentence of up to one year.
Consent and the Creation of Photos
It is essential to understand that the law explicitly prohibits the use of the fact that an individual consented to the creation of the photos as a defense. Furthermore, the law does not consider the fact that the depicted person consented to the taking of the photos or videos, or that they took them themselves, as valid defenses.
Legal References:
- Texas Penal Code Section 21.16(b)
- House Bill 98, 86th Texas Legislature Sections 2, 3(b), and 4
- Texas Penal Code Section 21.16(2)
- Texas Penal Code Section 21.16(f)
- Texas Penal Code Section 21.16(f)(1)
- Texas Penal Code Section 21.16(f)(2)
- Texas Penal Code Section 21.16(f)(3)
- 47 U.S. Code § 230(f)(2)
Note: The term “interactive computer service” is defined as any information service, system, or access software provider that enables computer access by multiple users to a computer server, including services or systems that provide access to the internet and those operated by libraries or educational institutions.
- Texas Penal Code Section 21.16(5)
- Texas Penal Code Section 21.16(g)
- Texas Penal Code Section 21.16(e)(2)
- Texas Penal Code Section 21.16(e)(1) (For additional references, see the Committee Report of SB 1135)