Person on computer

With the rise of cellular phones and “sexting,” Texas created a statute to deal with the problem of revenge porn. Texas has steep consequences for sharing, publishing, or threatening to share or publish intimate photographs with the intent to harm another person. Beginning in 2015, Texas added a revenge porn statute and even increased to the penalty associated with the offense in 2017. Since this law was passed, criminal defense attorneys have seen growing numbers of investigations and prosecutions for revenge porn in the Houston area.

Under Texas Penal Code 21.16 it is a crime to disclose sexually intimate material without permission that was originally given under circumstances in which the person depicted had a reasonable expectation that the material would remain private. The disclosure must have caused harm to the depicted person and the disclosure must reveal the identity of the disclosed person through accompanying information.

Threatening to disclose sexually intimate material to obtain a benefit is also an offense under the statute if the threat is in return for not making the disclosure or in connection with the threatened disclosure. Finally, 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 (in other words, that was intimate material that was meant to be kept private).

The statute specifically states that for all of these offenses, it is not a defense that the depicted person created or consented to the creation of the visual material, or voluntarily transmitted the visual material to the defendant. 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.

Apart from the direct legal consequences, a conviction for Unlawful Disclosure of Intimate Material could make it more difficult to find work, as a conviction will stay on a criminal history record forever. A felony conviction can make a person ineligible for some jobs or professional license, hurt a person’s immigration status, affect child custody or even the obtaining of credit. For these reasons, it is critical to speak with an experienced criminal defense attorney if you are charged under Texas’ revenge porn statute. A revenge porn conviction is currently not subject to sex offender registration.

Given that this statute was created to deal with a problem resulting from a new technology (cell phones), it is not surprising that it has undergone some changes and legal challenges. In 2018, a Texas Court of Appeals held that the law violated the First Amendment and asked the lower court to dismiss the charges of a man who was prosecuted for allegedly posting intimate material given to him by a woman online, without her consent. In the Houston area, similar Constitutional challenges to the revenge porn statute were made. In 2021, however, Texas’s highest criminal court overturned the decision and held that Texas revenge porn law does not violate the First Amendment.

How Can A Criminal Defense Attorney Defendant a Revenge Porn Charge?

 To be able to craft the most effective defense, a criminal defense attorney will first need to evaluate the evidence in an Unlawful Disclosure of Intimate Material case. In some revenge porn cases, it may be possible to argue that the defendant was not the one who actually posted, shared or threatened to share the sexually intimate material. If there is no question of identity, on occasion it may be possible to argue that the intent of the discloser does not meet the definition of the statute. Each section of the revenge porn statute requires a specific mental state that may not be present in all cases.

But even if it appears that the behavior alleged meets the definition of revenge porn in the statute, it may still be possible to obtain a dismissal by putting the behavior in the context of the relationship, or showing that the other party did worse things to the defendant. It is important to remember that almost every case alleging Unlawful Disclosure of Intimate Material takes place in the context of a heated and volatile romantic relationship, and it is the job of a criminal defense attorney to tell the story in a way that presents the defendant in a sympathetic light.

Hiring a Houston criminal defense attorney with experience in Unlawful Disclosure of Intimate Material charges is critical if you have been accused of posting, forwarding, or threatening to post revenge porn. Attorney Jose Ceja is a former prosecutor with extensive experience in sex crimes who will make every effort to build an aggressive, smart defense to get the best possible result. To learn more about these charges, or to schedule a free consultation, call today.