Lawmakers intended SB 1135 to stop revenge porn. It covered those images taken in circumstances in which the individual depicted in images might have reasonable expectations that the images or materials would be kept private.
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Revenge porn concerns the unauthorized release of intimate images arising from a relationship to the public. It also encompasses the capture of unlawful distribution of these intimate erotic images, regardless of the offender’s relationship to the victim. It may also include faux nude images.
Lawmakers argue that an offender’s act of revenge porn may be viewed as a type of sexual assault because of its possible impact on victims.
In other countries like Israel, revenge porn offenders face stiff laws. In fact, the offender is prosecuted as a sexual offender in Israel.
Of course, Texas law makes important distinctions between the ways in which the physical sexual assault victim differs from the revenge porn victim.
Importantly, not all revenge porn victims are female. In fact, women and men report image-based abuse.
According to Forbes, about five percent of females and three percent of males report non-consensual sharing of online intimate images.
U.S. Data Research and Institute (2016) reports that one out of 25 Americans online have been victimized by another person’s posting—or threats about posting—naked or nearly nude images without his or her permission.
Mason and Kelly are involved in a committed relationship.
One night, in a moment of passion, Mason asks Kelly if he may take nude photos of her.
She agrees, but before Mason takes a picture, Kelly says he can’t share the photo with anyone else.
He agrees that the photos will be private.
Mason takes a picture of Kelly in front of a white wall. Her breasts are exposed.
Several months go by, and the couple breaks up when Mason learns that Kelly had sex with someone else. He feels betrayed and angry.
In a fit of rage, Mason emails the image to some of his friends, including Bob. Although Bob doesn’t know Kelly and doesn’t recognize her, he forwards Mason’s comments to other friends.
Unfortunately, one of the recipients of the near-nude photo is one of Kelly-s coworkers, Jean. Jean recognizes Kelly and takes the image to Kelly’s manager.
Kelly’s employment is immediately terminated.
In this example, Mason is charged under Section 21.16(b). In addition, Bob and Jean can also be charged because they participated in sharing intimate images without the depicted individual’s permission.
In addition, Bob didn’t know that Mason promised he wouldn’t share the photo. He didn’t explain that Kelly had an expectation of privacy. What’s more, though, he had no intention to harm her and couldn’t identify her.
Unfortunately, under Section 21.16(b)(2), Bob is culpable, even though he has no knowledge about the circumstances concerning how the image was created or Kelly’s expectation of privacy.
Because SB 1135 doesn’t require that the depicted individual’s expectation of privacy be shared, the court found that it’s “an invalid, content-based restriction in the violation of the First Amendment.”
SB 1135, enacted by Governor Greg Abbott, was one of 38 laws passed throughout the United States to fight revenge porn, also referred to as nonconsensual distribution of pornographic images because the offender’s motives, whether revenge or something else, does not mitigate the act.
If convicted of SB 1135, offenders faced misdemeanor charges with punishments of up to 12 months in jail and maximum fines of $4,000.
The appeals case concerns a defendant who was indicted last year under Section 21.16(b) of the Texas statute.
The law bans the intention disclosure of visual materials that depict other person(s) with the exposure of his or her intimate parts (or the exposure of the depicted person’s engagement in sexual conduct) without his or her consent.
He was civilly accused of distributing at least one naked photo of another individual without her consent. The image revealed her identity, according to the Austin American-Statesman.
The defendant’s attorney filed an application for Writ of Habeus Corpus, arguing that SB 1135 is “facially unconstitutional.”
Because the trial court denied the defendant’s application, his attorney appealed SB 1135 in the 12th Court of Appeals in Tyler TX.
The appeals court determined that SB 1135 is too broad. The court concluded:
The appeals court didn’t suggest that any type of non-consensual disclosure of erotic/intimate images should be protected under the First Amendment. It concluded that SB 1135’s reach was too wide and far.
The law doesn’t merely ban the disclosure of images that are judged to be obscene. The laws already declare such images are illegal. It doesn’t just ban extortion based on such images. The laws already declare extortion is illegal.
Instead, the law declares a specific type of protected images, including those showing a person’s female nipple, naked genitalia, buttocks, pubic area, or buttocks, or images of a person’s engagement in simulated or actual sexual intercourse, sexual contact, sadomasochistic abuse, deviate intercourse, bestiality, or masturbation, to be “inherently impermissible” when an individual shares such images without the depicted party’s express permission—even when such images aren’t considered criminally obscene and/or when criminality, e.g. extortion, hacking, fraud, etc., isn’t involved.
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Section 21.16 is cited because the court finds it makes third parties liable and responsible for distributing covered content—even when the defendant didn’t have knowledge about the circumstances in which image(s) were taken or the depicted person’s expectations of privacy.
The state court noted that Texas law hasn’t previously considered whether disclosing individual(s) had intentions to do harm to the depicted individual(s).
Several lawmakers expressed their frustration at the Texas revenge porn law decision, including Rep. Matt Shaheen (R-Plano). He tweeted, “(Revenge porn) is a disgusting act” that should be punished.
The impact of the 12 Court of Appeals’ ruling is currently limited to those counties in its jurisdiction.
This ruling might not stand. The Texas state prosecutor, Stacy Soule, stated the intention to review the appeal court’s decision. The Attorney General’s Office has said it will continue to fight for S.B. 1135, vowing its intention to bring the case to the Texas Supreme Court if necessary.
Texas’ revenge porn law isn’t the first to have constitutional issues:
In contrast, New Jersey residents convicted of that state’s revenge porn law face significant fines (up to $30,000) with no jail time.
California’s law punishes the offender with up to one year in jail and up to $2,000 in fines.
The ENOUGH Act, a federal law (an acronym for ‘Ending Nonconsensual Online User Graphic Harassment’) introduced in 2017 by Amy Klobuchar, (D-MN), Kamala Harris (D-CA), and Richard Burr (R-NC) in conjunction with Representative Jackie Speier (D-CA), is awaiting consideration by the U.S. Senate’s Judiciary Committee.
Many Texans ask, “Where do we go from here?”
Those arguing against SB 1135 argue there’s insufficient evidence that the current law protects revenge porn victims.
Lawmakers argue that Texas law doesn’t have the means through which to effectively respond to revenge porn victims. They cite questions about how to improve victims’ ease of reporting.
They argue that more time is needed to determine the effectiveness of existing laws like SB 1135.
The law requires there must be an image, video, or audio of an intimate act in a revenge porn case. It’s important to determine who posted the content and the content he or she posted without the victim’s consent.
If you’ve been accused of distributing or producing revenge porn, don’t wait. It’s essential to contact an experienced Texas revenge porn lawyer quickly. The evidence might not be accessible in the days or months ahead.
An experienced revenge porn defense lawyer will investigate and consider technological issues, e.g. access points. It may be possible to argue that the defendant didn’t intend to intimidate or harass the depicted party.
The Law Office of Brett A. Podolsky will evaluate the facts of the case, including 1) the parties’ relationship, 2) whether the images were taken with consent of the depicted party, and 3) whether the parties discussed whether or not the content could be published. Contact Brett Podolsky in Houston at 713-227-0087 to schedule an initial case evaluation now.
