What You Need To Know About The “Revenge Porn” Law In Texas

In a time where we can instantly communicate with anyone via our smartphones, there is often a tendency to overlook potential privacy implications. For example, if you text or tweet an explicit picture of your spouse or partner, you may be inadvertently violating their privacy. You may also be committing a crime.

In 2017 the Texas legislature passed what is commonly referred to as the “revenge porn” law. This added language to the state Penal Code that can make it a felony to intentionally disclose “visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct.” Now, not every such disclosure is illegal. The statute includes several additional elements that a prosecutor must prove beyond a reasonable doubt:

• The visual material in question was created under circumstances in which the depicted person had a “reasonable expectation” of privacy;
• Disclosure of the visual material caused harm to the depicted person; and
• The disclosure reveals the identity of the depicted person in any way, including information provided by a third party in response to the disclosure.

Texas Appellate Courts Reject “Free Speech” Challenges to Law

A number of individuals charged with violations of the “revenge porn” law have argued the statute itself is unconstitutional as it infringes upon the constitutionally protected freedom of speech. Texas courts have uniformly rejected this defense. Just recently, the Texas First District Court of Appeals in Houston refused to issue a writ of habeas corpus in a pretrial challenge mounted by one such defendant.

The case before the First District, Ex Parte McGregor, is an ongoing prosecution. A Harris County grand jury indicted the defendant for allegedly disclosing a film depicting another person engaged in sexual conduct without their consent to their social media page. Before trial, the defendant filed a motion for a writ of habeas corpus–basically, a declaration that the prosecution was unlawful on constitutional grounds.

More specifically, the defendant argued the “revenge porn” law was “facially overbroad and vague,” and as such it “restricted a real and substantial amount of protected speech.” But as the First District noted, the Texas Court of Criminal Appeals (CCA) has already considered–and dismissed–such claims about the statute. Although the CCA’s opinion on this subject was unpublished–meaning it is not technically binding precedent–the First District said that “as a practical matter,” it was required to adopt the higher court’s reasoning and conclusions. In short, the “revenge porn” law is not unconstitutional when “properly construed.”

Contact Texas Criminal Defense Attorney Keith B. French Today

Texting naked or sexually explicit pictures of someone without their consent might seem like a harmless prank. But it can lead to serious felony charges. If you are charged with any sort of felony and need advice and representation from a skilled Pearland criminal defense lawyer, contact Keith B. French Law, PLLC, today to schedule a consultation.