At the beginning of this month, ripples were made by the 18-year sentence imposed on Kevin Christopher Bollaert for creating a website that allowed users to post sexually charged material of other people; to get the pictures off the site, the subjects of the material were forced to pay $300 to $350. The term used to describe the content is “revenge porn,” and it’s fairly easy to understand why it captures the media’s attention. The story features a young man, sexual material, and extortion. It also follows closely on the conviction of Hunter Moore, who pleaded guilty earlier this year in federal court for the same type of behavior.
Texas Senator Sylvia Garcia of Houston introduced legislation (SB 1135) which has now passed the entire Senate. It will go to the House for a vote soon.
Criminalizing Revenge Porn
In addition to creating a civil cause of action (including awarding attorney’s fees) against the person disclosing the “intimate visual material,” the fairly convoluted bill criminally proscribes three types of activity:
- First, a person commits an offense if:
- without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;
- the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
- the disclosure of the visual material causes harm to the depicted person; and
- the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
- any accompanying or subsequent information or material related to the visual material; or
- information or material provided by a third party in response to the disclosure of the visual material.
- Second, a person also commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:
- in return for not making the disclosure; or
- in connection with the threatened disclosure.
- And finally, a person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described in the first-mentioned proscribed activity on an Internet website or other forum for publication that is owned or operated by the person.
The bill also creates a couple of affirmative defenses, and it also creates a safe harbor for ISPs. Despite the relatively high number of elements which must be proven beyond a reasonable doubt, the crime would only be a Class A misdemeanor, so you won’t be seeing any blockbuster 18-year sentences for revenge porn in Texas. That is, if this statute is all that is used to prosecute an individual; the bill makes it clear that a person may be prosecuted under this statute, or any other statute which criminalizes similar conduct.
Causing Harm and Extortion
A couple of things jump out at me immediately (besides the somewhat quaint reference to “intimate parts”). First, the requirement that the complaining witness suffer some sort of harm. “Harm” isn’t defined in the bill, so what exactly will that mean? Is publication of the content harm enough? Or does the complaining witness (or plaintiff, if proceeding civilly) need to show that someone identified him or her?
Second, the extortion component is interesting. For one thing, there is no provided civil cause of action in the bill against someone who intentionally threatens to publish the material. For another, there is no definition for the term “benefit.” For that matter, there is no definition for the term “threaten,” either. In some ways, it is like the “terroristic threat” statute. Under Texas Penal Code § 22.07, it is a Third Degree Felony or Class A or B misdemeanor (depending on circumstances) for a person to threaten to commit any offense involving violence to any person with the intent to, inter alia, place a person in fear of imminent serious bodily injury. Basically, it’s the statute that makes it a crime for a person to say “I’m gonna kill you,” and pretty much mean it.
Clearly, the extortion component (because that’s what the threat paragraph is–extortion is defined by the Texas Code of Military Justice sec. 432.162 as, essentially, “communicat[ing a] threat[] to another person with the intent to obtain anything of value”) is designed to prohibit a person from using sexually charged material to get something in return. The stereotypical example would be “pay me money or I’m posting your naked pictures online,” or “if you want the pictures removed, you need to pay me $300,) or “have sex with me, or else I’m going to post those pics.”
You can imagine edge cases which can cause problems with the applicability of the statute, though. Can a person threaten to post the images without making the threat in relation to receiving a benefit? In other words, what if a person simply says “I’m going to post those pictures of us”? There’s not necessarily a benefit involved in that communication. Perhaps that falls in the gray area that plagues terroristic threat charges: “yeah, I said I’d kill him, but I didn’t really mean it.”
In any event, we’ll see if the bill gets through the Texas House.
