Though Texas had a law on the books for many years that covered illegal pornographic recordings, over time, it has been weakened by appeals due to the fact that the technology-based recordings and distribution channels for were out-of-step with the times. So in 2015, the Texas Legislature passed a new law surrounding “Invasive Visual Recording” [Texas Penal Code § 21.15], which is commonly called the “Upskirt Law.”
One of the successful appeals to the old law surrounded photographing underneath a female’s dress or skirt in public places. In closing this loophole, the Legislature had to allow for the fact that the new law had to remove the fact that the alleged suspect created the image with “intent to arouse or gratify the sexual desire of any person.”
The rewritten Invasive Visual Recording law is a companion to Texas’ Voyeurism Law [TPC § 21.17], which was also passed in 2015 and is known as the “Peeping Tom Law.”
New Technology behind the Need for this Clarified Law
One primary need to write the old pornographic recording law was due to the recent development of handheld technology which exploded early this century. Before 2000, there were no handheld smartphones, watches, imaging glasses, and other similar devices that could invasively photograph and record pictures and videos; and then share them online or with other personal communication devices.
So what in the past may have been a harmless recording now has major consequences because so many devices can record or transmit “pornography” instantly.
Moreover, invasive sexual recordings not only can embarrass those who were unaware they were being filmed, but they have also coined a new term: “revenge porn.” Under these circumstances, violators of Texas’ rewritten Invasive Visual Recording law not only face the possibility of being charged with other companion criminal offenses; federal charges could also await them.
The Clarified Invasive Visual Recording Law
Under Texas’ new Invasive Visual Recording law, the suspect commits this offense if he or she either photographs or by other means visually records another person without their consent and with intent to invade the privacy of the other person, while:
- “Intending to arouse or gratify the sexual desire of any person OR;
- “Knowing the character and content of the photograph or recording promotes the photograph or recording.”
Promotion in this case now includes “transmitting” it on the Internet or distributing it as an email or text attachment from their smartphone or by the use of any other electronic communication device.
The following are the definitions of what images or behavior can constitute Improper Photography or Visual Recording [TPC § 21.15(a)]
- Female breast: Any area below the top of the areola.
- Intimate area: A person’s naked or clothed genitals, pubic area, anus, buttocks, or female breast
- Changing room: A room or designated area primarily used for the changing of clothing including: dressing rooms, locker rooms, and swimwear changing areas.
- Promote: The manufacturing, issuance, selling, giving, providing, lending, mailing, delivering, transferring, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting, or advertising, or to offer or agree to do the same.
Punishment
Texas Invasive Visual Recording law is a State Jail felony with a punishment of between 180 days and two years in state jail and a fine of up to $10,000. But if the suspect has committed more serious crimes, such as a felony while committing this crime, he or she may be prosecuted for the more serious criminal offense.
If the suspect used or displayed a deadly weapon during the commission of this offense, the perpetrator can be charged with a third-degree felony, which is punishable by up to up to 10 years in prison and a fine of up to $10,000.
Federal Videotaping (and other) Laws Might also be Violated
Under the Federal Voyeurism (invasion of privacy) Law [18 USC § 1801] it is illegal to “Capture an image of a private area of an individual without their consent when that individual has a reasonable expectation of privacy.”
But since the federal violation by itself carries a lighter sentence than Texas’ Invasive Visual Recording law, if no other federal violations are present, the U.S. Attorney usually lets individual states prosecute the suspect.
There are circumstances where other more serious federal crimes may have been committed. Primarily, if the image or video was distributed across state lines or on a massive scale, or if other federal pornography or human trafficking laws were violated. Then the federal government will step in and prosecute.
Unlike Texas, which has many discretionary penalties, virtually all federal felonies come with mandatory punishments and prison sentences of many years. Also, if one is convicted of any such federal crimes, the suspect could be exposed to civil lawsuits by the defendant(s) and might even have to pay the federal government back for the expenses of criminal investigations that led to their conviction.
Were You Accused of Invasive Video Recording?
Get Help & Relief Today! Call Jack B. Carroll & Associates.
Since 1991, Jack B. Carroll & Associates has provided defendants in sex crime cases effective legal defense services and strategies that work. If you’re living in fear of a conviction for invasive video recording or another crime that could be seen as a sex crime, call Jack B. Carroll & Associates today.
Our phone number is 713-228-4607.