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When is taking or sharing explicit photos a crime in Texas?

By Jose Ceja
Managing Attorney

According to researchers, as of 2018, 95% of Americans own and regularly use a cell phone. Not surprisingly, the use of cell phones to take and share explicit photos has also risen dramatically, especially among young people. Although most of the time, sexually explicit recordings are taken and shared consensually, there are also instances when explicit photos and videos are taken or shared without permission. But how does Texas law punish the improper taking or sharing of explicit recordings? What should you do if you are under investigation for the improper taking or sharing of an explicit photo or video?

What happens if a sexually explicit photo or video is taken without permission?

Texas has a law that makes it a very serious offense to take explicit photos or videos without consent. This law is known as invasive visual recording and protects the improper recording of “intimate areas,” (which is defined to include the genitals, pubic area, anus, buttocks or female breast), recordings made in bathrooms or changing rooms, or the transmission of either. 

Under Texas Penal Code 21.15, invasive visual video recording can be charged when a person, without consent and with the intent to invade the privacy of the other person:

-Photographs or videotapes the “intimate area” of another person if the other person has a reasonable expectation that the intimate area is not subject to public view

-Photographs, videotapes or transmits a visual image of another in a bathroom or changing room; or

-Knowing the character and content of the recording, circulates or shares such a recording. 

Invasive visual recording is a State Jail Felony in Texas that is punishable by 180 days to 2 years in jail and a $10,000 fine. 

There are many potential defenses to the crime of invasive visual recording. In Texas, it is the duty of prosecutors to establish all of the elements of the offense of invasive visual recording (or any criminal offense) and a strong defense should start with challenging the elements of the offense. In some cases, the State will be unable to prove who it was who took or shared the recording. In other cases, there may be a defense that a recording was taken with either express or implied consent (implied consent may exist where the persons had a history of taking and sharing explicit photos). Many First Amendment challenges have been raised against the offense of invasive visual recording and it may be possible to successfully argue that the statute is overbroad and unconstitutionally punishes legal behavior. 

How is revenge porn charged in Texas? 

In response to the rise of sexting (and improper sharing of explicit photos) Texas passed a revenge porn statute in 2015. The penalty associated with the revenge porn was even increased in 2017. Since the statute was passed, there are an increasing number of revenge porn charges filed every year in the Greater Houston area. 

Under Texas Penal Code 21.16 it is a crime to disclose sexually intimate material without permission. The statute also requires that the sharing of sexually intimate material caused harm (which can include embarrassment or damage to the person’s reputation) to the depicted person and the disclosure must reveal the identity of the disclosed person through accompanying information.

Threatening to share sexually intimate material to gain a benefit is also an offense (in other words, blackmail using sexually explicit recordings). Additionally, owners or operators of websites can be prosecuted under the statute for publishing sexually intimate visual material if they know the “content and character” of the material (this portion of the statute punishes people who run revenge porn websites).

Defenses to revenge porn in Texas can include that the defendant is not the one who shared the material, the person consented to the sharing or that the person could not have reasonably believed that the material would be kept private. Under the statute it is not a defense that the material was originally created or shared with consent. A violation of any of these subsections is a State Jail Felony, punishable by up to two years in jail, and a fine of up to $10,000.

If you are under investigation for invasive visual recording or unlawful disclosure of intimate material, it is almost never a good idea to talk to the police about an allegation.

As a general rule, if the police have sufficient evidence to charge you with any criminal offense, it does not matter what you say (contrary to what the police may imply, they won’t “help you” if you cooperate). On the other hand, if the police do not have sufficient evidence to charge you with a crime (because they can’t prove who shared or took a sexually explicit image, for example), then by speaking to police, you risk giving them the information that was lacking to charge you. 

If you are under investigation or have been charged with either of these offenses, you should speak to an experienced sex crimes attorney right away. Attorney Jose Ceja is a former prosecutor who regularly obtains excellent results in sex crimes for his clients throughout the Greater Houston area. Call Ceja Law Firm today for a consultation.

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.