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For Your Eyes Only

Tuesday, February 27, 2018

Travis Wiles Chief Felony Prosecutor – Dallas County District Attorney’s Office SPRING 2018 ISSUE: CRIMINAL ACTIVITY AND LIABILITY

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A failed love interest? A friendship betrayed? These circumstances sometimes encourage people to disseminate private videos and images of their former friend or lover in attempts to embarrass, get back at, or destroy the reputation of the other individuals. However, revenge porn, the distributions of intimate photos or images of another person, is illegal. This article outlines the criminal consequences of engaging in revenge porn with hopes of deterring any further participation in such actions.

On September 1, 2015, Texas joined the growing ranks of states that have enacted statutes specifically constructed to criminalize conduct commonly known as revenge pornography (aka revenge porn).¹ The Texas statute, found in Penal Code Section 21.16, is known as the Relationship Privacy Act (RPA). It is designed to provide criminal remedies for victims whose images are disclosed, while acting as a deterrent to those who may disclose explicit images or facilitate the disclosure.²

The RPA creates a Class A Misdemeanor³ offense for the “unlawful disclosure or promotion of intimate visual materials.” The term “visual materials” is broadly defined to include any film or photograph, as well as any physical medium that allows an image to be displayed on a video screen (disk, electronic storage device, etc.). By delineating separate manners of committing this offense, the statute takes aim at three specific types of conduct: the disclosure of visual material, the threat of disclosure of visual material, and the promotion of visual material via a forum of publication.

Penal Code Section 21.16 provides criminal penalties for the most commonly recognized forms of revenge porn. Subsection (b) applies to the classic revenge porn scenario: a rejected lover posts intimate photos of an “ex” on the Internet after a break-up. A victim consenting to the creation of the material or providing the actor with the material within the privacy of a relationship is independent of whether the victim consents to the disclosure of the material. Moreover, the disclosure does not need to be wide-spread or available to the public. It could be as simple as showing a paper photographic image to a friend in a private setting. Additionally, a third-party could be criminally responsible if he or she subsequently discloses the material. Conceivably, the statute is broad enough to cover other forms of disclosure of visual images. For example, one consequence of “sexting” is that recipients often share the images with friends or others at school or work. While this situation is not typically termed “revenge porn,” the statute appears to apply to such disclosure.

The next section of the Penal Code, 21.16(c), contemplates criminal penalties for a blackmail scenario: the actor threatens to disclose visual images to obtain a benefit. The benefit does not have to be financial or benefit the actor directly. Penal Code Section 21.16(d) is designed to criminalize the conduct of people that own or operate “forum[s] for publication” (Internet websites, magazines, etc.). This section punishes and deters operators of revenge porn websites, which are known to charge victims to remove images from the site.

Unlawful disclosure or promotion of intimate visual materials could be charged as an isolated act. However, because the creation and sharing of explicit images between partners may be part of a larger relationship dynamic between the actor and the victim, other statutes may be applicable in revenge porn scenarios. These offenses include: sexual and physical assault offenses, online impersonation, harassment, stalking, and breach of computer security. Penal Code Section 21.16(h) provides that a person can be prosecuted under this section and any other law if the conduct constitutes an offense. Sources ¹ Cyber Civil Rights Initiative, 37 States + DC Have Revenge Porn Laws (last visited Feb. 24, 2017) ² S.B. 1135, 84th Leg., Ch. 852 ³ Tex. Penal Code § 21.16 (g) (2015) and Tex. Penal Code § 12.21 (2015)

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