Improper Photography

In Texas, the law regarding Improper Photography dictates that the use of hidden cameras and/or taking photographs or videos of a sexual nature without the subject’s consent can result in a felony charge.

Below is the Statute:

2. 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:
      1. without the other person’s consent; and
      2. 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:
      1. without the other person’s consent; and
      2. with intent to:
         1. invade the privacy of the other person; or
         2. 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).

5. 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.

Alongside social media sites like Facebook and YouTube (Instagram, Twitter, Vine, etc.), the technology available to record the photos and videos we choose to share with others has expanded. Nearly every “smart” phone user has the ability to take clear, quality pictures and share them instantly with the world of viewers on the Internet. Furthermore, there exists an abundance of sites with sexually explicit themes that promote archives of “amateur” videos or images. Once an image has been sent and posted online, it can be accessed, downloaded, and distributed with ease.

Under section (3) of the statute, a number of new issues related to privacy, consent, and intent arise for the prosecution of any improper photography case. For example, if Sally sent a photo or video to John and he forwarded it to others, he could later be prosecuted for such an act if sharing the image or recording was non-consensual. If Sally is underage, then the charge raises to the distribution of child pornography.

It is suffice it to say that the Texas Penal Code has not yet comprehensively evaluated what the advent of Internet and technology means for criminal conduct and procedure. The immense social change of this century has made it so technological innovation will be ubiquitous in younger generations. Teenagers now have the ability to record anything at any time and immediately distribute it, and with such ease of use and access, there is little concern for privacy. Rather, people seem more excited to share than ever before. Consequently, it is important to remind ourselves to be careful taking pictures or videos that we may not want the whole world to see.

Recently, the Texas Court of Criminal Appeals struck down most of the improper photography statute declaring it unconstitutional because the law violated first amendment protections of free speech. However, some of the law still is in effect. For example, in locations where people have a high expectation of privacy, such as a bathroom or changing room, a person caught taking a picture or recording a video can still be prosecuted under this law.

If you are charged with improper photography then it is important to contact Paul Doyle to evaluate your case and make sure your constitutional rights are protected.