Texas law makes it a crime to take recordings of a person without their consent under certain circumstances where they have an expectation of privacy. This includes taking recordings of a person’s intimate areas or recordings in a bathroom stall or changing room. This crime is known as invasive visual recording, and it is frequently charged in the Houston area. Invasive video recording is charged as a felony in Texas. Although a conviction for invasive visual recording is not subject to sex offender registration, the consequences can still be severe, and it is critical to speak to an experienced sex crimes attorney if you are facing an invasive visual recording charge.
How is invasive visual recording charged in Texas?
Under Texas Penal Code 21.15, the crime of invasive visual recording consists of recording (by video or photograph) a person in certain situation with the intent to invade the privacy of the other person.
Under Texas law, there are three ways that the offense of invasive visual recording can be committed. The first is recording images of a person’s “intimate areas” (which is defined to include the genitals, anus, buttocks or female breast) without consent when a person has a reasonable expectation of privacy. The second is recording a person in a bathroom or changing room. This subsection does not require that intimate areas be recorded. Finally, a person can be charged with invasive visual recording by transmitting or broadcasting any such recording.
Invasive visual recording is charged a State Jail Felony punishable by 180 days to 2 years in jail and up to a $10,000 fine. Depending on the facts, it is possible that a person could be charged with another related offense such as unlawful disclosure of intimate material or even possession of child pornography, if the alleged victim of the invasive recording is a minor.
How are invasive visual recording cases defended?
In order to defend an invasive visual recording charge, a criminal defense lawyer should first obtain all of the evidence. This will include the offense report, body camera videos from the officers who investigated the incident, witness statements, 911 recordings, and frequently the actual video that constitutes the alleged offense. An experienced criminal defense lawyer should always assume that his client is innocent and evaluate the evidence from that perspective.
In the Houston area, the most common defense in invasive recording cases is lack of intent. The invasive recording statute requires that a person act with the intent to “invade the privacy of the other person.” As a result, the defendant might not be guilty if they had some other intent. For example, if a store manager puts a camera near a changing room but is unaware that it records people inside the changing room, he would not be guilty of invasive visual recording, as his intent was not to invade the privacy of anyone inside the changing room.
Other potential defenses include mistaken identity, consent (where the victim had explicitly or implicitly agreed to the recording) or that evidence was seized in violation of a defendant’s rights and should not be permitted at trial (for example, if the police took a confession from a suspect when they were obligated to read Miranda rights). The best defense in an invasive visual recording case will depend on the evidence and the unique facts and circumstances of a particular case.
How can you keep an invasive visual recording case off of your record?
To completely erase an invasive visual recording charge from your record, it will be necessary to obtain an expunction of the charges. However, under Texas law, a defendant is typically only eligible for an expunction if they are acquitted (a verdict of “not guilty”) at trial or if the case is dismissed. This is why a dismissal or an acquittal is always the goal with an invasive visual recording charge.
If the case is not dismissed, or if you are not acquitted, then the next best option to keeping an invasive visual recording charge off of your record may be getting your records sealed. Getting your record sealed (also called a non-disclosure), may be an option in an invasive visual recording case if you are assessed a deferred adjudication probation and complete it successfully. Although not as good as an expunction, getting your records sealed means that most private entities would not be able to see the arrest.
If you are charged with invasive visual recording anywhere in the Greater Houston area, call Ceja Law Firm today for a free consultation. Mr. Ceja is a former prosecutor with almost 20 years’ experience in criminal law and has earned a reputation of obtaining excellent results for clients throughout the Houston area.
