Texas: Improper Photography

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bmattock

bmattock

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State law in Texas says:

§21.15 – Improper Photography or Visual Recording

A person commits an offense if the person either:
1. Photographs or by other means visually records another
a. Without the other person's consent, AND
b. With intent to arouse to gratify the sexual desire of any person
OR 2. Knowing the character and content of the photograph or recording, promotes the photograph or recording.

This is a state jail felony.
State jail felony: No more than 2 years or less than 180 days in state jail

If the conduct giving rise to a violation of this section would also be a violation of any other section, the actor may be prosecuted under either section.
Click to expand...

Many of the arrests and prosecutions under this law have been of people who pretty clearly were breaking the laws of any state - such as 'upskirt' photographs and putting video cameras in changing rooms and locker rooms, etc. However, from time to time, people have been arrested and prosecuted for doing what would otherwise be legal - except that it seems they are perverts and taking photos. Not nude photos, not privacy-invading photos, just regular photos but with a 'strange' emphasis.

Here's an example:

http://galvestondailynews.com/story.lasso?ewcd=5321b09db55f9a56

League City man charged after taking photographs

By Chris Paschenko
The Daily News

Published January 15, 2010
WEBSTER — Police arrested a League City man at a Webster park on allegations he sought to gratify his sexual desires by photographing teen and preteen girls playing soccer, authorities said Thursday.
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Is he a sicko? Oh I think probably yes...

Police seized computer equipment from Clark’s car, including a digital camera, 16 memory cards, an iPod, six USB flash drives, a computer and a collection of pornographic pictures, DVDs and magazines, Smiley said.
Click to expand...

But please note that sick or not, it's not against the law to possess that kind of stuff.

However, according to police:
Webster police arrested Clark at 7:15 p.m. Wednesday, Smiley said.

“The photographs were from the knee to the neck,” Smiley said, noting none of the girls’ faces was pictured.

Clark is accused of photographing the children without consent with the intent to arouse and gratify a sexual desire, Smiley said.
Click to expand...

So, he took photos of girls playing soccer in public. Clothed, of course. But the photos were of their midriffs, from the knee to the neck. That's gross. I would certainly agree that this guy is most likely a sick little twist. But is what he did injurious to the girls he photographed? Has society been harmed in any way? Should he go to prison for up to two years and have a lifelong felony conviction?

Bear in mind that in most place in the USA, it's not illegal to be a nasty person with sick desires. It's only illegal to harm others in pursuit of those nasty desires. In this case, all he did was to take photos that would, according to Texas law, be legal IF he didn't have a sick desire. So it is only the sick desire that exists in his mind that makes it a crime.

If he had taken photos that included the girl's faces and didn't have porn in his car, in other words, he would have broken no Texas laws.

Is it OK to make it a crime for people to have sick thoughts?

Thoughts?
 
Without checking the total writeup of the law, or looking for any court cases, the writeup you quote seems a little vague and non-specific. It might have a problem holding up to a court challenge as being too broad.

You are correct that we normally don't punish people for having sick or illegal thoughts, only for taking action or encouraging others to take action on those thoughts. In this case, and in Texas, I think you will find a jury will consider the additional evidence of his porn mags, and probably his magnetic media which although not stated, probably has some porn, as evidence he met the intent of the law's proscription of illegal behavior. If they search his house and find anything linking him and his photographs to pedaphelia, it will only add to the body of evidence.

Time will tell.
 
oftheherd said:
Without checking the total writeup of the law, or looking for any court cases, the writeup you quote seems a little vague and non-specific. It might have a problem holding up to a court challenge as being too broad.

You are correct that we normally don't punish people for having sick or illegal thoughts, only for taking action or encouraging others to take action on those thoughts. In this case, and in Texas, I think you will find a jury will consider the additional evidence of his porn mags, and probably his magnetic media which although not stated, probably has some porn, as evidence he met the intent of the law's proscription of illegal behavior. If they search his house and find anything linking him and his photographs to pedaphelia, it will only add to the body of evidence.

Time will tell.
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If a photographer were standing next to him who did not have a car load of porn, he would have broken no laws in the state of Texas - unless they have found a way to determine what people are thinking. So it is not the action of photography that is illegal, it's the state of mind.

I have a problem with laws that require photographers to prove they are not sickos or they go to prison.

When this law was passed in Texas years ago, I took note with horror, but I thought surely it would be challenged for constitutionality and be found wanting. That has not happened. There have been people charged under the law for silly reasons, like grandparents who lost visitation rights to the grandkids because they took naked photos of their two-year-old grandkid splashing in an outdoor pool. Yes, the charges were dropped; after they spent tens of thousands of dollars in their legal defense.

Crimes tend to specify behaviors and not mental state. I have a strong aversion to laws that attempt to regulate not what people do, but how they feel about what they do. Yes, a person might be able to defend themselves from such a charge if they are not actually sickos, but at great expense and possibly costing them their jobs, families, and whatever money they may have. Too high a price to 'save' people from having photos taken of their daughters in public under what would OTHERWISE be perfectly legal.
 
"Is it OK to make it a crime for people to have sick thoughts?"

- Of cause not.

But we should also be aware of our own 'sick thoughts', and don't make it the thoughts of others. By this I mean that we should not suspect just anyone with a camera on a beach to be a sexual psychopath, as the press might try to tell us. The press thrives on our sexual anxieties.

In these troubled times, please be aware of spectacular press stories with sexual content which could well be cooked up. Or exaggerated. Just to avert our attention away from the crisis around us and the real perpetrators to many's miseries, these days.
 
What is up with the (2) section? It is illegal to promote a picture if you know what it is about? Surely it is missing something.

(I just wrote and then erased a bunch or fuzzy headed logic going both directions).
 
i was on a beach with a camera this summer. I even used it sometimes. I'm a 32 y old dude. I was there with my girlfriend. A lot of persons were topless on the beach. Women, i mean.
I did not directly point the camera to anyone's titties but i am sure i got some in the background.
Nobody cared a diddly-squat about me snapping away.
Was in Catalonia, though, not in Texas,US.
 
Sparrow said:
do you not have a concept of Intent (guilty thought) in US law? Well established this side of the pond

http://en.wikipedia.org/wiki/Intention_in_English_law
Click to expand...

Of course we do:

http://en.wikipedia.org/wiki/Mens_rea

However, having a 'guilty mind' is a component of a crime - it is not a crime in and of itself.

The photos would be legal if taken by someone who did not have a 'guilty mind' in Texas. In all other US states, they'd be legal with or without a 'guilty mind'.
 
Talk about vague, to the point of incomprehensible, paragraph 2's providion: "2. Knowing the character and content of the photograph or recording, promotes the photograph or recording." The language does not appear to apply to sexually gratifying photos, because all that language is in paragraph 1 and the two are separated by an "or" This is the sort of bad writing that gets innocent folks in trouble for no good reason!
 
a. Without the other person's consent, AND
b. With intent to arouse to gratify the sexual desire of any person

So anyone is still free to take picture in public without consent of all persons visible in frame, while point b. isn't valid.

And...it really takes some effort to prove that point b. is valid.
 
degruyl said:
What is up with the (2) section? It is illegal to promote a picture if you know what it is about? Surely it is missing something.

(I just wrote and then erased a bunch or fuzzy headed logic going both directions).
Click to expand...

Here's the actual link to the Texas statutes:

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.21.htm

Hopefully this one makes more sense. Sorry, got the first cite off a lawyer's website, it may have been redacted:

Sec. 21.15. IMPROPER PHOTOGRAPHY 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 records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:

(A) without the other person's consent; and

(B) with intent to:

(i) invade the privacy of the other person; or

(ii) arouse or gratify the sexual desire of any person; or

(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).

(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.

(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person's consent under that subdivision.

Added by Acts 2001, 77th Leg., ch. 458, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 500, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 306, Sec. 1, eff. September 1, 2007.
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One criticism others have made of the law is that technically, if you take a photo that someone else finds 'sexually gratifying', you have broken the law. It is very broadly written. I can't understand why it hasn't been challenged for constitutionality.
 
bmattock said:
Of course we do:

http://en.wikipedia.org/wiki/Mens_rea

However, having a 'guilty mind' is a component of a crime - it is not a crime in and of itself.

The photos would be legal if taken by someone who did not have a 'guilty mind' in Texas. In all other US states, they'd be legal with or without a 'guilty mind'.
Click to expand...

Ya, I suppose that is stretching the envelope a bit. We got a new offence in the last terrorism bill called “Glorifying an act of terror” that makes holding an opinion a crime, admittedly a pretty sick opinion, but I still feel uneasy about it.

I suppose it’s all moving closer to the Orwellian “Thought Crime”
 
Sparrow said:
do you not have a concept of Intent (guilty thought) in US law? Well established this side of the pond

http://en.wikipedia.org/wiki/Intention_in_English_law
Click to expand...

We have a concept of intent, but it is usually part of other circumstances. Assault with intent to kill for instance. There first has to be a provable assault, then you can look at the intent, but it has to be proven by means defined by the statute as reconciled by case law.

To simple say a person had an intent to make others have prurient thoughts without some action defined in law would usually be struck down as outside the law or too broad. If a person had posted photos online, that could be used to prove intent to influence others. In drug laws, the statute may define a certain amount as intent to distribute rather than simply use.

So yes, we have that concept, but thoughts without action is usually not going to be a crime.
 
marke said:
Everytime I hear about something like this, I get closer and closer to just go back to photographing birds...or maybe just the trees in my back yard.
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I think that's a very good point. We've discussed in other threads on RFF the idea that people don't dare take photos of kids who are not their own anymore, even if the photographs would be completely legal. We're scared of what others might think, we're sensitive to objections others (like parents) might raise.

Many here are parents and have said that they'd be upset over strangers taking photos of their children, even taken in public, even 'innocent' photos taken with no prurient interest.

I get all of that, I understand the feeling. The question is whether or not protecting parents against feeling badly is worthy of putting a person in prison. This is a two-year felony, remember.

Is the guy a perv? It certainly appears so. Is being a perv a crime? Well, not in most places (you can look at porn if you want, you can even fantasize about the kind of porn that would be illegal, presuming you don't own any of it). In Texas, they seem to be saying it is illegal, and a person can be put in prison, for THINKING dirty thoughts.

And I'm struggling to find the victim here. Who is being harmed? The children photographed? I find that hard to believe - since if a hypothetical photographer was standing right next to this pervy guy and took the same photos, he would NOT be breaking the law. So the photo gets taken either way. Is society being harmed? This guy might do something awful to gratify his desires - but he hasn't done anything awful yet. Do we put him in prison because he might?

Yeah, I can see how this would tend to put people off taking any photographs that have people in them at all. There's always someone who thinks you're doing it for the 'wrong reason' and in Texas, that's illegal!
 
oftheherd said:
We have a concept of intent, but it is usually part of other circumstances. Assault with intent to kill for instance. There first has to be a provable assault, then you can look at the intent, but it has to be proven by means defined by the statute as reconciled by case law.

To simple say a person had an intent to make others have prurient thoughts without some action defined in law would usually be struck down as outside the law or too broad. If a person had posted photos online, that could be used to prove intent to influence others. In drug laws, the statute may define a certain amount as intent to distribute rather than simply use.

So yes, we have that concept, but thoughts without action is usually not going to be a crime.
Click to expand...

if police stopped a man and found say a pry-bar in his position they would have a charge of “going equipped for burglary” available for some people, but not if it were a carpenter going to his workplace ... there is always a circumstantial aspect
 
Sparrow said:
if police stopped a man and found say a pry-bar in his position they would have a charge of “going equipped for burglary” available for some people, but not if it were a carpenter going to his workplace ... there is always a circumstantial aspect
Click to expand...

Very true, and it is a crime in most places in the US to be in 'possession of burglar tools', under the same circumstances you mention.

However, in this case, the man 'possessed burglar tools' (the porn in his car) which certainly helped establish he was a perv, but he wasn't charged with possessing burglar tools (porn in the car), he was charged with taking photos that would otherwise be perfectly legal. The difference is that in the case of the would-be burglar, he's being charged with possessing what he's using to commit a crime. In the case of the pervy photographer, he's being charged for being pervy, which is not a crime by itself, and taking photos of clothed young girls in public, which are not crimes by themselves. There is no 'smoking gun' in this case.

I can own porn. I can even keep it in my car. All perfectly legal.

I can take photos. I can even take photos of young clothed girls in public playing soccer. All perfectly legal.

In Texas, what's being said is that having the legal porn and taking the legal photos adds up to a felony.

That's not the same as a person possessing 'burglar tools' which would otherwise be legal, because he's off to do something that would otherwise be illegal. Like you said, if he were a carpenter, there would be no crime here.

So two problems I see. The first is that he's not being punished for possessing burglar tools (porn). He's being punished for his mental state (legal even if twisted) while taking photos (legal in any state of the US).
 
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