The Thin Line Between “Revenge Porn” and Child Pornography
Today, we live in a voyeuristic society. People are always taking photos or videos documenting every moment of their lives; from what they ate for breakfast, traffic on their morning commute, and even more intimate content like nude photos or lewd videos.
In recent years, many Texans have found themselves in legal trouble behind this explicit content. Two of the most common offenses related to the possession and/or transmission of certain explicit content are child pornography and revenge porn.
For example, a Round Rock criminal defense lawyer was arrested in late 2015 on child pornography charges after police received a tip that he was threatening to release revenge porn, another criminal offense. The Austin based attorney allegedly claimed he was in possession of nude photographs of an adult female. When he allegedly threatened to release the nude photographs online, the woman called the Round Rock Police Department.
During the sex crime investigation, the Round Rock Police reportedly discovered about 200 explicit photos and videos of mostly girls under the age of 14. The attorney was subsequently charged with child pornography.
Similar events occur throughout Texas, including Dallas, Fort Worth, and Arlington, every day. It is important to understand the difference between documenting intimate moments and child pornography or revenge porn.
What is Child Pornography?
Many people think the only way to be charged with child pornography is to possess lewd or nude photos of young children on a computer or other electronic device. In actuality, child pornography encompasses a wide array of criminal behavior.
According to Texas Penal Code, Section 43.26, an individual may be charged with possession or promotion of child pornography if he or she knowingly or intentionally possesses or knowingly or intentionally accesses with the intent to view, visual material that depicts a child under the age of 18 engaging in sexual conduct.
While the definition of child pornography appears straightforward and only includes the possession of inappropriate images of young children, the statute considers any explicit content of individuals under the age of 18 as child pornography. This includes persons age 15–17.
This expansive age range can cause a person who does not fit the traditional model of a sex offender to be charged with possession or promotion of child pornography, including other minors, individuals just over the age of 18 in a romantic relationship with persons between the ages of 15–17, or persons unaware individual depicted in the visual material was under the age of 18 (Mistake of fact is a not a viable defense).
There are many facets to a child pornography charge and defense. It is highly recommended to consult an experienced child pornography defense attorney if faced with child pornography accusations or criminal charges.
What is Revenge Porn?
Revenge Porn, formally called unlawful disclosure or promotion of intimate visual material, became a criminal offense in Texas on September 1, 2015.
According to Texas Penal Code, Section 21.16, an individual may be charged with unlawful disclosure or promotion of intimate visual material if he or she discloses material depicting a person’s intimate parts exposed or a person engaging in sexual conduct under the following circumstances:
1. The depicted person did not provide effective consent;
2. The depicted person had a reasonable expectation the material would remain private;
3. The depicted person is harmed by the disclosure of the material; and/or
4. The identity of the depicted person is disclosed.
An individual may also be charged with unlawful disclosure or promotion of intimate visual material without actually disclosing the material. The Texas statute also criminalizes threatening to release intimate visual material.
A person commits the offense of unlawful disclosure or promotion of intimate visual material if he or she intentionally threatens to disclose the visual material and makes a threat to obtain a benefit from or in connection to the threatened disclosure.
How Does Child Pornography Differ From Revenge Porn?
Age: The Texas child pornography statute criminalizes the possession or promotion of visual material depicting individuals under the age of 18 engaging in sexual conduct only. Before the enactment of the revenge porn statute, individuals over the age of 18 did not have recourse through the criminal law system for explicit material released without his or her consent.
Disclosure v. Possession: The child pornography statute criminalizes both possession and promotion of explicit material. An individual can only be charged under the revenge porn statute for disclosing or threatening to disclose explicit material without the depicted person’s consent. Should a person just possess explicit material of a person over the age of 18 and not threaten to disclose, Texas Penal Code, Section 21.16 does not apply.
Penalties: Unlawful disclosure or promotion of intimate visual material or revenge porn is a Class A misdemeanor, punishable by not more than 1 year in a county jail and/or a fine of not more than $4,000.
First offense possession or promotion of child pornography is generally a third degree felony, punishable by 2 to 10 years in a state prison and/or a fine of not more than $10,000. Criminal penalties are more severe for repeat offenders and if the content depicts a person under the age of 14.
Sex Offender Registration: A conviction for possession or promotion of child pornography is reportable offense, meaning an individual convicted must register as a sex offender with the State of Texas.
Unlawful disclosure or promotion of intimate visual material or revenge porn is not a reportable offense. An individual convicted will not be considered a sex offender and is not required to register.
Conclusion
Paul Stuckle of Stuckle & Associates, PLLC is an experienced criminal defense attorney who dedicates the majority of his practice to defending individuals falsely accused of sexually motivated offenses, including child pornography, indecency with a child, child molestation, and statutory rape.
Stuckle & Associates, PLLC diligently defends individuals charged with child abuse, sex crimes, and domestic violence throughout Texas, including Dallas, Fort Worth, Plano, Arlington, Denton, Houston, Austin, San Antonio, and surrounding areas.
Contact the experienced attorneys of Stuckle & Associates, PLLC at (972) 423–3395 for a confidential, free consultation.
