When Is Posting Videos Considered Revenge Porn?

Posting revenge porn is a criminal act under Texas law, but the statute is currently being reviewed by the state’s highest court of criminal appeals. The issue is whether the law’s broad definition of revenge porn improperly criminalizes conduct that is usually protected under the right to free speech. As it stands, the definition of revenge porn extends to basically any situation where you share a recording of someone engaged in sexual conduct, and the person depicted expected that the recordings would remain private.

For now, the old law remains in place, but the state legislature is already in the process of passing new legislation that will be less vulnerable to a constitutional challenge. Therefore, it is likely that Texas will have a new revenge porn law by the end of the year, which will target a narrower range of conduct.

If you have been charged with sharing revenge porn, The Law Offices of Ned Barnett can help. Call us today at (713) 222-6767, or reach out online for a free and confidential consultation of your case.

The State of Texas Struggles to Define Revenge Porn

When Texas’ revenge porn law came into effect, it was immediately controversial because of how broadly it defined revenge porn. Under the statute, you can be charged with a state jail felony if you share intimate visual material, and the person depicted in the material had a reasonable expectation that it would remain private. If convicted, you face 180 days to two years in jail, and up to $10,000 in fines.

The problem with the definition of revenge porn is that it does not require any criminal intent, which is usually an element that prosecutors must prove when seeking a person’s conviction. Without having to prove this element, prosecutors can target a wide range of people – many of whom might have acted out of mistake or carelessness.

Houston Democrat Sylvia Garcia, who authored the bill, maintains that “the law was crafted carefully to focus on only the worst and verifiable behavior that sexually defames its victims.” But without a requirement of intent, her law essentially criminalizes free speech. Courts across the nation have long held that the right to free speech extends to many forms of harmful and even hateful content.

The Texas Court of Criminal Appeals has yet to rule on the constitutionality of the revenge porn law, but the legislature is already taking steps to introduce a new law that avoids these constitutional issues. Introduced this year, House Bill 98 adds the element of intent and knowledge into the definition of revenge porn. Under the proposed language, a revenge porn conviction would require that a prosecutor prove the following elements:

• The defendant shared the intimate visual material with the intent to harm the person who is depicted.
• The defendant knew or should have known that the person depicted in the material had the expectation that the material would remain private.

House Bill 98 was unanimously approved by the Texas House of Representatives, and is now being considered by the state Senate, where it will likely pass with a comfortable margin. Texas will likely have a new revenge porn law regardless of how the Court of Appeals rules on the old law.

A Houston Sex Crimes Lawyer Can Help

Until the new law is approved or the appeals court strikes down the old statute, Texas will continue to enforce its broad definition of revenge porn. A conviction for this offense carries serious penalties along with the prospect of having a sex crime conviction on your permanent criminal record. For this reason, you should think twice before pleading guilty to the offense.

If you’ve been charged with sharing revenge porn, you should contact an experienced Houston sex crimes lawyer to learn about the possible defenses to your case. For a free and confidential consultation, call The Law Offices of Ned Barnett today at (713) 222-6767, or reach out through the online form.