Revenge Porn in Texas. Am a guilty of it?

POST IT OR NAW? HOW TEXAS HANDLES REVENGE PORN

We’ve all heard the story—a revengeful ex shares naked pictures or videos from their ex on social media after experiencing a break-up to get back at their former lover. While many people think this is something that “just happens” because of social media, these actions have serious and far-reaching criminal consequences in Texas.

Not only is important to understand the potential criminal consequences for taking part in one of these acts, but if you are currently facing charges for one of these, it is essential to have an experienced criminal law attorney like the board-certified criminal law attorneys at Nickols & White representing you on your case.

REVENGE PORN

In 2015, Texas introduced the Unlawful Disclosure or Promotion of Intimate Visual Material (commonly referred to as “Revenge Porn”) section to the Texas Penal Code through Senate Bill 1135, the Relationship Privacy Act. In 2017, this section was amended and currently provides that a person can commit this offense in three ways: (1) disclosing visual material depicting another person’s exposed intimate parts or engaged in sexual conduct, (2) threatening to disclose visual material, and (3) promoting visual material on the Internet.

Disclosing Visual Material

The first way a person can commit this offense is:

  1. Without the consent of the depicted person, a person intentionally discloses visual material depicting another 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 any information related to the visual material or information or material provided by a third party in response to the visual material.

This is the scenario described above. A jilted lover posts a picture on Facebook that their ex sent them—which was meant only for that person to see—and the depicted person is identified either through the post itself or by someone else commenting on the picture.

“Visual Material” includes any film, photograph, videotape, etc. that shows someone’s naked genitals, pubic area, anus, buttocks, or female nipple of a person or that shows someone engaged in actual or simulated sexual intercourse.

A person has a reasonable expectation that the visual material will remain private when the person intends for the picture to be viewed by only one person. So just because the picture was sent to someone via text or social media does not mean that the person intended for the picture or video to be public.

Under this portion of the Revenge Porn statute, the visual material has to reveal a person’s identity. Often times, people will say “but you can’t see their face!” But, according to the Revenge Porn statute, seeing someone’s face is not the only way they can be identified. Someone can be identified through their tattoos, birth marks or features even if their face isn’t in the picture. The Revenge Porn statute also provides that a person is identified if a third person responds to the visual material with the person’s identity.

Threatening to Disclose Visual Material

Next, a person commits this offense if they:

  1. threaten to disclose visual material depicting another person’s intimate parts exposed or engaged in sexual conduct and the person makes the threat to obtain a benefit
    1. in return for not making the disclosure or
    2. in connection with the threatened disclosure.

This happens when someone threatens to disclose visual material to receive some kind of benefit like money or other nude pictures. For instance, let’s say John has a nude picture of Sally. John tells Sally that if she doesn’t send him $100 he will post the nude picture of her on Facebook and tag Sally’s boss. This would be a violation of this section of the Revenge Porn statute because in return for not making the disclosure of Sally’s naked picture, John threatened to disclose the naked picture of Sally if Sally did not give him $100.

Promoting Visual Material

Finally, a person commits this offense if:

  1. knowing the character and content of the visual material, the person promotes visual material on an Internet website or forum for publication that is owned or operated by the person.

To 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 those things.”

For example, John has a video of him and Sally engaging in sexual conduct and then sends the video to everyone in his high school through his Snapchat account. This would also be a violation of the Revenge Porn statute because John knew what the video was and he circulated the materials through his Snapchat account.

Punishment

Texas punishes unlawful disclosure or promotion of intimate visual material as a state jail felony. A state jail felony is punishable by confinement in jail for not more than two years and not less than 180 days. A person can also be fined up to $10,000 for a state jail felony.

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Overall, revenge porn is a very serious offense in Texas. Distributing compromising images or videos is not something that “just happens.” If you are charged with this crime it is essential to obtain an experienced attorney that will advocate for you.