Disclosure of Intimate Material

Disclosure of Intimate Material Charges in Texas

The following definitions are established under Texas Penal Code § 21.16(a) as they relate to unlawful disclosure or promotion of intimate material:

• Intimate parts — The naked genitals, pubic area, anus, buttocks, or female nipple of a person;
• Promote — To procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above;
• Sexual conduct — Sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
• Simulated — The explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks;
• Visual material — Any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or any disk, diskette, or another physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other methods.

Texas Penal Code § 21.16(b) establishes that a person commits unlawful disclosure or promotion of intimate material if they:

• without the effective consent of the depicted person, intentionally disclose 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.

Under Texas Penal Code § 21.16(c), a person also commits a revenge porn crime if they intentionally threaten 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 alleged offender makes the threat to obtain a benefit in return for not making the disclosure or in connection with the threatened disclosure.

Texas Penal Code § 21.16(d) makes it illegal for a person, knowing the character and content of visual material, to promote visual material described by Texas Penal Code § 21.16(b) on an Internet website or other forum for publication that is owned or operated by the person.

Disclosure of Intimate Material Penalties in Dallas

Unlawful disclosure or promotion of intimate visual material charges is a state jail felony. A conviction is punishable by up to two years in state jail and/or a fine of up to $10,000.

Chapter 98B was also added to the Texas Civil Practice & Remedies Code by the RPA. Texas Civil Practice & Remedies Code § 98B.002(a) provides that a person is liable to an individual depicted in intimate visual material for damages arising from the disclosure of the material if:

• the alleged offender discloses the intimate visual material without the effective consent of the depicted person;
• the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;
• the disclosure of the intimate visual material causes harm to the depicted person; and
• the disclosure of the intimate visual material reveals the identity of the depicted person in any manner, including through any accompanying or subsequent information or material related to the intimate visual material; or information or material provided by a third party in response to the disclosure of the intimate visual material.

Under Texas Civil Practice & Remedies Code § 98B.002(b), an alleged offender will be liable to a person depicted in intimate visual material for damages arising from the promotion of the material if, knowing the character and content of the material, they promoted intimate visual material described by Texas Civil Practice & Remedies Code § 98B.002(a) on an Internet website or other forum for publication that is owned or operated by the defendant.

Under Texas Civil Practice & Remedies Code § 98B.003, a claimant who prevails in a suit under Chapter 98B of the Texas Civil Practice & Remedies Code can be awarded actual damages (which may include damages for mental anguish), court costs, and reasonable attorney’s fees as well as possible exemplary damages (also known as punitive damages or vindictive damages).

Disclosure of Intimate Material Defenses in Texas

Texas Penal Code § 21.16(e) establishes that it is not a defense to prosecution under Texas Penal Code § 21.16 that the depicted person created or consented to the creation of the visual material or voluntarily transmitted the visual material to the alleged offender. Under Texas Penal Code § 21.16(f), however, it is an affirmative defense to prosecution under Texas Penal Code § 21.16(b) or Texas Penal Code § 21.16(d) that:

• the disclosure or promotion is made in the course of lawful and common practices of law enforcement or medical treatment; reporting unlawful activity; or a legal proceeding, if the disclosure or promotion is permitted or required by law;
• the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person’s voluntary exposure of the person’s intimate parts or the person engaging in sexual conduct; or
• the alleged offender is an interactive computer service, as defined by Title 47 U.S.C. § 230, and the disclosure or promotion consists of visual material provided by another person.

Dallas County Disclosure of Intimate Material Resources

Cyber Civil Rights Initiative (CCRI) — CCRI is a 501(c)(3) nonprofit organization “serving thousands of victims around the world and advocating for technological, social, and legal innovation to fight online abuse.” According to the CCRI website, revenge porn “though frequently used, is somewhat misleading.” Instead, CCRI claims a more accurate term would be “nonconsensual pornography (NCP), defined as the distribution of sexually graphic images of individuals without their consent.”

TX | 2015-2016 | 84th Legislature | LegiScan — You can view the full text of SB 1135 and its complete legislative history from introduction to the governor’s signature. Also, view vote totals and different versions of the bill. Additional information is provided about the bill’s sponsors, comments, and research.

Find A Dallas County Defense Attorney for Disclosure of Intimate Material Charges | Law Offices of Richard C. McConathy

Were you or your loved ones arrested for alleged disclosure of intimate material in Dallas or a surrounding area of Texas? Contact the Law Offices of Richard C. McConathy today for a consultation about your alleged offense in Irving, Dallas, Carrolton, Richardson, and surrounding areas of Dallas County, Texas.

Our firm understands the complicated relationships that can lead to these kinds of criminal charges and we help people work through court cases to achieve the most desirable resolutions. Call (972) 233-5700 or contact us online.