Sorry I am so late to the party - this happened while I was on vacation. Of course, I have to weigh in on this...
The government wants (naturally) to protect people from sexual deviants, and there is strong motivation for them to do so - concerned parents often vote! Nobody wants to be on the wrong side of this issue - and that includes appearing to be sympathetic to perverts. So they often pass laws that are later found to be illegal or unconstitutional.
Laws like this can have unintended consequences...we all understand that they original intent was to protect children from exploitation - a laudable goal. However, they may end up putting legitimate photographers in jail; not a good thing at all.
Let's take a look at this one:
§ 21.15. IMPROPER[0] PHOTOGRAPHY[0] OR VISUAL
RECORDING. (a) In this section, "promote" has the meaning
assigned by Section 43.21.
(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic
means visually records another:
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual
desire of any person; or
(2) knowing the character and content of the
photograph or recording, promotes a photograph or visual recording
described by Subdivision (1).
(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section or the other law.
Added by Acts 2001, 77th Leg., ch. 458, § 1, eff. Sept. 1, 2001.
Amended by Acts 2003, 78th Leg., ch. 500, § 1, eff. Sept. 1,
2003.
The important bit here is 'intent'. Did you catch that? IANAL - but
mens rea is an important part of many crimes. It means if you don't have criminal intent, you can't commit the crime.
However, how does the state prove what your mental state was? After all, they have to prove intent - the accused does not have to prove they didn't have intent. In the USA, 'innocent until proven guilty' means that the prosecution has to prove your intent if that is a facet of the crime.
If you have a digital camera and you take nothing but closeup shots of breasts and butts (clothed), or 'upskirt' shots of women who wear dresses, then it would seem as if you are mostly interested in making photographs that are intended to produce sexual arousal in anyone, including yourself. If the police, through the use of search warrants, can determine that you distribute photos like this via email or post them on a website, then your goose is probably cooked.
I suspect that these type of laws will continue to be passed. In the age of very small digital cameras, sexual deviants can get their jollies very easily this way. The big problem is that such laws tend to be over-reaching in an attempt to cover every angle - and they can ensnare those who are innocent of any intent to commit any crime. Prosecuters and police who are given big tools tend to use them that way - and if they have malice themselves, they can do a great deal of damage.
Imagine someone taking a photo of Britany Spears while she was trolloping by on some Texas street. Now, if the photographer knows that someone else will get their jollies by seeing that photo - they've committed the same crime as the upskirt photographer and they face the same jail term.
And on a more general note - someone tell me HOW a person can be injured if their anonymous body part is displayed on the web or via email and some pervert gets off on it? Is there some 'karma' thing happening that attaches to the person whose breast or butt was photographed in a close up? If the person could be recognized, that's one thing, but when it is just a body part? Where is the victim if the police can't even identify them?
I'm serious here. Imagine some pervert who gets gratification from bald heads. A photographer gets a photo of my bald pate and sends it around. How am I injured when some nutbar looks at it and does naughty things to himself while looking at my bald head?
Somebody tell me what children are 'protected' by this law - and how they are not 'protected' if the law does not exist?
And hey, I grew up with National Geographic and Sears Roebuck catalogs laying around, you guys know what I mean. Were those photographers supposed to be arrested and put in jail?
Oh, one last thing...this is sure to tick everyone with kids off...
Last week while I was on vacation, my wife and my friends and I went to a popular restaurant. It was full, so we had to wait in the lobby, which got really crowded. A family came in - about five of them were girls under the age of majority. All the girls wore jeans that were cut below the hipline. I remember when showing belly-buttons was daring - these were several inches below that. Their shirts covered their belly buttons, but failed to cover the area of skin that exists below that down to nearly you-know-what. I have no idea what was holding their pants up, in fact. OK, parents - you want to protect your children from predators - what about starting by making them dress a tiny bit less like sluts on display?
No, I don't believe that a woman is 'asking for it' if something bad happens. But let's face it - we live in a society that values and glorifies youth and sexuality. Pop icons are young, thin, and very clearly sexually displayed. Brittany Spears? Paris Hilton? Like them or despise them, they are still the images we seem to value as a society.
And then, after telling consumers that this is what they should lust after, we punish the poor freaks who actually do. Well, if they take photos of it, anyway.
Strange world...
Best Regards,
Bill Mattocks
