Texas: Improper Photography

[Bill Mattocks]

I mentioned in an earlier post that Texas has an unusual law against certain types of photography, known as 'Improper Photography'. This law goes further than most laws against laws against certain types of photography.


§21.15 – Improper Photography or Visual Recording
A person commits an offense if the person either:
1. Photographs or by other means visually records another
a. Without the other person=s consent, AND
b. With intent to arouse to gratify the sexual desire of any person
OR 2. Knowing the character and content of the photograph or recording, promotes the photograph or recording.

This is a state jail felony.
State jail felony: No more than 2 years or less than 180 days in state jail

If the conduct giving rise to a violation of this section would also be a violation of any other section, the actor may be prosecuted under either section.

Now, this was in my news search this morning:

http://galvestondailynews.com/story.lasso?ewcd=5321b09db55f9a56


League City man charged after taking photographs

By Chris Paschenko
The Daily News

Published January 15, 2010
WEBSTER — Police arrested a League City man at a Webster park on allegations he sought to gratify his sexual desires by photographing teen and preteen girls playing soccer, authorities said Thursday.

Now, ordinarily, it is not illegal to photograph girls playing soccer.

However, the police were called by suspicious parents and they examined his camera and allegedly found:


“The photographs were from the knee to the neck,” Smiley said, noting none of the girls’ faces was pictured.

Clark is accused of photographing the children without consent with the intent to arouse and gratify a sexual desire, Smiley said.

Furthermore, the police searched his vehicle and allegedly found:


Police seized computer equipment from Clark’s car, including a digital camera, 16 memory cards, an iPod, six USB flash drives, a computer and a collection of pornographic pictures, DVDs and magazines, Smiley said.

Now, in my opinion, the man is pretty clearly a freak, and yes, he most likely was getting his jollies from taking the photos.

HOWEVER.

The crime with which he is charged has nothing to do with the junk found in his car. That may establish that he's a sick little twist, but it's not against the law. It isn't against the law to be a sick little twist (in most places) unless you DO SOMETHING that is going to harm others. Reading porn isn't hurting anyone, especially legal porn. And taking photos of little girls in public is generally not illegal either. They clearly were not harmed in any way.

So why is this a crime? Yes, he's sick. But what if the porn had not been found in his car? What if he was just a non-sick non-twisted photographer? According to Texas, he is still at risk of going to prison for two years for taking photos of girls in public, fully clothed, because of what MIGHT be going on in his own mind.

Thoughts?

[Ken Morgan]

...loaded question Bill...

Thought crimes.

As a father he's guilty, as a libertarian he did nothing wrong....

[Bill Mattocks]

...loaded question Bill...

Thought crimes.

As a father he's guilty, as a libertarian he did nothing wrong....

Well, it may be a loaded question, but it's a real situation, so...

Imagine he had a guy standing next to him taking photos also. But the guy standing next to him included the girl's faces in his photos and he didn't have a car full of porn. So the police could take no action against him, he's broken no laws.

How are they different? How do we know what is or isn't in this hypothetical second photographer's mind when he takes the photos?

As a photographer, I have taken photos that others objected to. I'm not a perv, but how would I prove that if accused of 'improper photography' in Texas?

http://www.flickr.com/photos/wigwam/sets/72157605621476836/

http://www.flickr.com/photos/wigwam/sets/72157608587580620/

If I took these photos in Texas, would I be arrested? What if I were stopped by the police and they found a Penthouse magazine in my car also?

[dancingalone]

Bill, surely context comes into play here. Your albums have a variety of poses, clearing showing you had an interest in the event or in the people, rather than any sexual reasons. If a guy is just taking pictures of butts, boobs, and legs, he's doing something he shouldn't, and if it's the law in Texas, I don't have a problem with him being charged and tried for the crime.

[Bill Mattocks]

Bill, surely context comes into play here. Your albums have a variety of poses, clearing showing you had an interest in the event or in the people, rather than any sexual reasons. If a guy is just taking pictures of butts, boobs, and legs, he's doing something he shouldn't, and if it's the law in Texas, I don't have a problem with him being charged and tried for the crime.

In any other state, taking photos of butts, boobs, and legs, (clothed and in public) is not illegal. Are you saying it should be?

And bear in mind that the text of the law says nothing about WHAT he took photos of, it has to do with what his state of mind was.


1. Photographs or by other means visually records another
a. Without the other person=s consent, AND
b. With intent to arouse to gratify the sexual desire of any person
OR 2. Knowing the character and content of the photograph or recording, promotes the photograph or recording.

So what this says is "intent to arouse to gratify the sexual desire of any person." How do you prove intent? If I take those same photos that he did, but I do not have any 'intent to arouse' is that then OK? Texas law would say yes. But the actions are the same, the photos are the same.

You say my photos show a broader context. But what if you cherry-pick through them and only pick on the ones that might be 'iffy'? Am I then a felon deserving of prosecution?

And according to the Texas law, you can paint with an even broader brush. What if someone looks at my photos and gets off on them? The laws says 'of any person', not just the photographer himself.

In other words, if someone in Texas looks at my photos and gets a touchy with himself because they turn him on, I am now a felon according to Texas law.

[dancingalone]

How do you prove intent?


In Justice Potter Stewart's immortal and controversial words, "I know it when I see it." :)

I understand the angle you're coming from, Bill. As a resident of Texas, I certainly don't mind the law and for that matter I think it's a plus. Didn't know we had it, but if it keeps the pervs from taking advantage of underage kids at soccer games I'm for it.

And, yes, I remember you don't like Texas or Texans from a prior post. Good day to you, nonetheless.

[Bob Hubbard]

Reading that law, it sounds like my macro work "The Caves of Bin Laden" would get me a world of trouble. While I recognize the need to go after predators, this seems to be a blanket they can throw anyone they don't like under, a "we'll get something to stick" law. I don't like those.

[Bill Mattocks]

Didn't know we had it, but if it keeps the pervs from taking advantage of underage kids at soccer games I'm for it.


In what way are the underage kids 'taken advantage of'?

Again, if another photographer took those same photos but did not have sick thoughts, the photos are the same. How does one take advantage of kids and the other doesn't?

[Bob Hubbard]

Considering how many shots of one of my models ended up on a fetishists spank list because of the striped socks she was wearing, laws like this worry me. I do NOT shoot spank material. Laws like this criminalize those shots due to nothing I nor the model did. Based on the wording, if I shoot a series on nuns, and they find them in someones spank bank, I can be found guilty of producing porn. Worries me.

(Yes, striped socks and nuns are 2 fetish shoot areas)

[dancingalone]

In what way are the underage kids 'taken advantage of'?

Again, if another photographer took those same photos but did not have sick thoughts, the photos are the same. How does one take advantage of kids and the other doesn't?

Eh? "The photographs were from the knee to the neck,” Smiley said, noting none of the girls’ faces was pictured."

I'm just guessing, but I would think a normal photographer wouldn't be taking photos only from the knee to the neck for prurient use later. Your scenario would likely never happen in the first place.

[MA-Caver]

While I understand the law was created to help protect from exploitation and possible further criminal acts... I agree with Bill. Why is this man being arrested for his THOUGHTS?
What if he were a soccer uniform designer and wanted to get ideas or sell a line and also just happen to have porn in the car because hey he, like millions of other people... happens to LIKE porn.

Still even I can see taking pictures of only torsos is being awfully specific. So it goes that the guy had ill intent.
I wonder if I were standing next to the guy and taking shots of the girls on the field... would I be searched and thought of the same way?

I think I missed something ... did they have a warrant to search the files on the guy's camera at the time? Isn't THAT illegal?

Thought police.

how scary.

[Bill Mattocks]

Eh? "The photographs were from the knee to the neck,” Smiley said, noting none of the girls’ faces was pictured."

I'm just guessing, but I would think a normal photographer wouldn't be taking photos only from the knee to the neck for prurient use later. Your scenario would likely never happen in the first place.

Photographers take all kinds of photos that non-photographers might find unusual. There are people who take photos only of feet because that's their photographic oeuvre. There are others who look at photos of feet because it makes them feel all woogly. How would someone not into photos of feet know which was which?

[Bill Mattocks]

Considering how many shots of one of my models ended up on a fetishists spank list because of the striped socks she was wearing, laws like this worry me. I do NOT shoot spank material. Laws like this criminalize those shots due to nothing I nor the model did. Based on the wording, if I shoot a series on nuns, and they find them in someones spank bank, I can be found guilty of producing porn. Worries me.

(Yes, striped socks and nuns are 2 fetish shoot areas)

Yes, the Highland Dance photos I took have been 'favorited' by people on Flickr who were clearly into Highland Dance, and by people who were clearly into photos of little girls in skirts. I have 'blocked' anyone who appeared to be the latter - but according to Texas law, I'm a felon because of the way THEY thought about my photos.

[dancingalone]

Photographers take all kinds of photos that non-photographers might find unusual. There are people who take photos only of feet because that's their photographic oeuvre. There are others who look at photos of feet because it makes them feel all woogly. How would someone not into photos of feet know which was which?

Then common sense should tell any photographer, it's not a good idea to go to a girl's soccer game and take pictures of only the torso, regardless of his intent. It's the same reason why my church trains adults who engage in youth ministries to avoid being alone with minors unless another adult is also present.

We can debate about the insanity of the world and of this law, but it is what it is. I'm a law and order kind of guy, so I fall on the authoritarian side of the argument. Don't be a perv, and you (figuratively) won't have any problems.

[Bob Hubbard]

The law doesn't require the photographer to be a perv, just that someone gets excited looking at their work.

[Bill Mattocks]

The law doesn't require the photographer to be a perv, just that someone gets excited looking at their work.

That is correct if you read the law as it is written.

By the way, I had apparently posted an incomplete copy of it earlier. My apologies. Here's the whole thing, direct from the Texas state website:

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.21.htm


Sec. 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING. (a) In this section, "promote" has the meaning assigned by Section 43.21.
(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual desire of any person;
(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:
(A) without the other person's consent; and
(B) with intent to:
(i) invade the privacy of the other person; or
(ii) arouse or gratify the sexual desire of any person; or
(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).
(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.
(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person's consent under that subdivision.

Added by Acts 2001, 77th Leg., ch. 458, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 500, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 306 (http://www.legis.state.tx.us/tlodocs/80R/billtext/html/HB01804F.HTM), Sec. 1, eff. September 1, 2007.


I bolded the appropriate point that Bob made above.

[celtic_crippler]

So, based on that law... Does that mean in Texas there are no cameras on ATMs or other public cameras? Like "traffic" cameras on street lights and such? Or security cameras in banks and convenience stores?

...just wondering.

[dancingalone]

The law doesn't require the photographer to be a perv, just that someone gets excited looking at their work.

As I said above, context and surely common sense comes into play. No one is going to prosecute you under this law unless there's a very good reason to suspect 'you' are a perv.

[Bob Hubbard]

Common sense and law are not related.

[Bill Mattocks]

So, based on that law... Does that mean in Texas there are no cameras on ATMs or other public cameras? Like "traffic" cameras on street lights and such? Or security cameras in banks and convenience stores?

...just wondering.

Imagine the airports in Texas with the TSA agents who have to look at the milimeter wave scanners of humans passing through. The government says they cannot see the actual person, and they cannot retain the photos or transmit them anywhere. But they have to look at them, and they are very explicit.

So, if that is the case, it's perfectly legal for the officer to look at the photos - UNLESS - he is a perv. If he gets gratification from looking at them, he's a felon in the state of Texas.

Now what difference does that make to the person being scanned? They don't even know. In what way are they harmed? The world will never see those photos, just some pervy little guy in a booth who can't even seem them in person.

But according to the law, in Texas, if the guy gets his jollies that way, he is a felon.

Does that make sense to anyone?

[MA-Caver]

The law doesn't require the photographer to be a perv, just that someone gets excited looking at their work.
So what about your photography Bob? You're not a perv but it is explicit enough that someone could get excited from it. Sometimes just the suggestion of sex is enough for some people. It doesn't take much to get a fantasy started in anyone's mind, provided they see something that typically stimulates them.

But that wasn't the original intent of your photography. Yet someone else can get excited by it and that makes you a perv?

[dancingalone]

Common sense and law are not related.

They frequently aren't. Our legal and judicial systems are still all we've got however.

I would be personally offended if I had a minor daughter and some guy was taking stroke pictures of her at a soccer game. I am pleased my state criminalizes behavior like this.

[Bill Mattocks]

As I said above, context and surely common sense comes into play. No one is going to prosecute you under this law unless there's a very good reason to suspect 'you' are a perv.

There is nothing illegal about being a perv. In fact, many people are.

Hustler magazine used to publish a second magazine called 'Barely Legal'. Pornographic photos of young girls who were just over the legal age of consent (18, I think). But they were made up to look as if they were much younger, to appeal to those pervs out there who like 'em young, but don't want to officially break the law. Pervy, but legal.

What you seem to be saying is that you're OK with laws making it illegal to be a perv, whether or not you hurt anyone else. Just being a perv means you should be in prison. Is that right? I don't want to put words in your mouth.

[Bill Mattocks]

They frequently aren't. Our legal and judicial systems are still all we've got however.

I would be personally offended if I had a minor daughter and some guy was taking stroke pictures of her at a soccer game. I am pleased my state criminalizes behavior like this.

But if he took the same photos and did NOT have prurient interest, then the photos would be legal, and nothing you could do about it.

And I still haven't heard about in which way you or your daughter would be harmed by the photos. What harm? What damage? What you seem to be saying is that you object to what a person thinks about when they look at your daughter.

I might see your daughter while the two of you were strolling down the street and think "My, what a pretty little girl," as you used to hear grandparently-type people saying. Or I might be thinking something nasty. So, you feel I should go to prison because I think something nasty, even if I don't do something nasty?

How does society control what people think?

[dancingalone]

There is nothing illegal about being a perv. In fact, many people are.


We probably have different meanings for 'perv'. Someone who is aroused by underage girls and acts on his desire is clearly a perv in my book. This is what I mean by don't be a perv.

[dancingalone]

But if he took the same photos and did NOT have prurient interest, then the photos would be legal, and nothing you could do about it.


As I said in response to Bob, I simply don't believe that scenario happens. And if it does, the photographer needs to engage in some common sense.



And I still haven't heard about in which way you or your daughter would be harmed by the photos. What harm? What damage? What you seem to be saying is that you object to what a person thinks about when they look at your daughter.


There's no physical harm done. Other types may be debateable though.



I might see your daughter while the two of you were strolling down the street and think "My, what a pretty little girl," as you used to hear grandparently-type people saying. Or I might be thinking something nasty. So, you feel I should go to prison because I think something nasty, even if I don't do something nasty?


If you're taking nasty pictures, darn tooting right I think you should. If you're just thinking something nasty, no there's no law against that. That would be between yourself and whatever deity if any that you believe in.

[Stac3y]

So, based on that law... Does that mean in Texas there are no cameras on ATMs or other public cameras? Like "traffic" cameras on street lights and such? Or security cameras in banks and convenience stores?

...just wondering.

No; you're misreading. The law doesn't prohibit taking photographs without the subject's consent unless you add the second part, that those photographs are taken with the intent of arousing prurient, yada yada yada.

And I might mention that the intent of the photographer is the crux of the law. If you take pics without prurient intent, and someone finds them to be arousing (like the striped socks, or the nuns), unless YOUR INTENT was to create images for these audiences, it is not a crime. So, Bob, you aren't a felon in Texas, even if someone here gets their jollies off your pics. (Unless, of course, you intended that. Which is so doubtful as to be ridiculous.)

I don't like the law, though. I think it's unreasonably restrictive to intellectual and artistic freedom. I don't think it's really a "thought police" issue, though; intent is a significant part of many criminal trials, especially those dealing with the killing of another human being.

[jks9199]

That is correct if you read the law as it is written.

By the way, I had apparently posted an incomplete copy of it earlier. My apologies. Here's the whole thing, direct from the Texas state website:

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.21.htm


I bolded the appropriate point that Bob made above.
Guys, it's the photographer who needs to have the intent -- not the viewer. It reads that the person must take the pictures without the persons consent AND with the intent to gratify or arouse someone's sexual desires (among the other things on that laundry list).

[Cryozombie]

As far as the thought crime aspect... without the Material in the car, how do they know his intent wasn't to sell those shots to a uniform designer? The idea that a person can be arrested and jailed for "what we think you thought" is frightening.

[Xue Sheng]

Common sense and law are not related.


Sooooo still leaving NYS for Texas :D

[Bill Mattocks]

As far as the thought crime aspect... without the Material in the car, how do they know his intent wasn't to sell those shots to a uniform designer? The idea that a person can be arrested and jailed for "what we think you thought" is frightening.

Absolutely. And consider that the 'material' in his car was, as far as we know, not illegal in and of itself. They did not refer to it as kiddie porn or anything like that, surely they would have charged him if it had been illegal itself. So you've got a guy who likes porn (who here doesn't) and who keeps it in his car (dumb but I guess it happens). Then he takes photos of young girls playing soccer. Fully clothed. In public. And by adding A + B, we come up with C. But A and B are not illegal, and C isn't illegal either, except in Texas.

Consider also that the Texas law does not say ANYTHING about the age of the persons whose photos are being taken. So if the girls had been adults, the photographer would STILL have been breaking the law in Texas.

You know, the guy who takes photos of women for Sports Illustrated's Swimsuit issue could just as easily be arrested if he took any of those photos in Texas. After all, he intentionally photographs those women to make them look as sexy as he can - clearly appealing to prurient interest.

The problem is, you can't really stand up for this guy because he clearly is a perv (as it appears). And no one wants to be seen as standing up for a perv. But what he was doing is not illegal anywhere else in the USA, and did no harm to anyone, and is so broadly-worded that pervy TSA officials and anyone who ever found a Swimsuit issue of Sports Illustrated spankworthy are all felons under Texas law. That's too much.

[Ken Morgan]

My head is spinning on this one.

Do I think the guy is a “pervert”? Probably.

But I am against any law that punishes you for “thinking” about something.

I don’t know how to make both those thoughts copacetic with each other.

When I paint or draw nude life models, I can dim that switch in my head, and focus on the lines and shadows. There are zero sexual thoughts. I’m sure Bill, Bob and my Sensei plus every other photographer are the same way. Though from the reverse side, I’m sure there are some out there that can’t dim that switch, but provided they “act” professional, are they guilty of anything?

[Bill Mattocks]

As I said in response to Bob, I simply don't believe that scenario happens. And if it does, the photographer needs to engage in some common sense.


No one takes photos of kids in public who is not a perv? Hmmm.



There's no physical harm done. Other types may be debateable though.


We don't put people in prison for inflicting emotional damage.



If you're taking nasty pictures, darn tooting right I think you should. If you're just thinking something nasty, no there's no law against that. That would be between yourself and whatever deity if any that you believe in.

What's the difference? If I am a school photographer taking senior pics and I happen to also be a perv, they're the same photos either way. But you'd have me put in prison because of my perversion, not because of what I did (take photos of senior).

Remember, the guy took no 'nasty photos'. He took regular photos of clothed girls playing soccer in public. He didn't include their feet or their heads. In what way is the public injured by this? In what way are the girls harmed by this? In what way does this prove that he needs to be stopped? And again, if he had included their heads and feet, he'd have broken no laws, even in Texas. So that's what makes it illegal? Heads and feet?

[Bill Mattocks]

We probably have different meanings for 'perv'. Someone who is aroused by underage girls and acts on his desire is clearly a perv in my book. This is what I mean by don't be a perv.

Anyone who bought a copy of "Barely Legal" by Hustler back when it was being sold is a person you described above. Should they go to prison for two years?

And if we want to get down to it, let's take a look at advertising in the USA. We know that 'sex sells', but for decades now, the trend has been towards younger and younger models, all of whom are clearly 'sex bombs' and desired by older men. From Brook Shields to Britney Spears. Are we all felons?

The photos taken of those models that grace our billboards and magazine advertising are all clearly taken with the intent to appeal to prurient interest, and they clearly succeed, since they've been doing it for years and the advertisers appear to be selling whatever product they push quite well.

So society is made up of sickos, many or all of us attracted to underage girls. Who goes to jail? The ones who raise their hands and admit it?

[dancingalone]

No one takes photos of kids in public who is not a perv? Hmmm.



Remember, the guy took no 'nasty photos'. He took regular photos of clothed girls playing soccer in public. He didn't include their feet or their heads. In what way is the public injured by this? In what way are the girls harmed by this? In what way does this prove that he needs to be stopped? And again, if he had included their heads and feet, he'd have broken no laws, even in Texas. So that's what makes it illegal? Heads and feet?

Now you're putting words in my mouth. I haven't seen the pictures in question but I had assumed they were shots of "boobs, butts, and legs" either singly or in combination. If an accurate characterization, the pictures would indeed pervy, and I would support prosecution.



We don't put people in prison for inflicting emotional damage.


We do imprison people who spy on others and so violate their privacy rights. Is there a right to not be the subject of someone's elses pornography? If not, there should be.

[Bob Hubbard]

Imagine the airports in Texas with the TSA agents who have to look at the milimeter wave scanners of humans passing through. The government says they cannot see the actual person, and they cannot retain the photos or transmit them anywhere. But they have to look at them, and they are very explicit.

So, if that is the case, it's perfectly legal for the officer to look at the photos - UNLESS - he is a perv. If he gets gratification from looking at them, he's a felon in the state of Texas.

Now what difference does that make to the person being scanned? They don't even know. In what way are they harmed? The world will never see those photos, just some pervy little guy in a booth who can't even seem them in person.

But according to the law, in Texas, if the guy gets his jollies that way, he is a felon.

Does that make sense to anyone?

Well.....my opinion of the TSA aside, no. Badly written law that only applies when it does.

Here is my take on the law:
1- It is illegal to shoot spank material in public.
2- It is illegal to shoot period where an expectation of privacy is in order.
3- A sign in a bathroom saying your on camera doesn't excuse this.

2&3, no problem.

#1, problem. I go to the beach, I shoot the beach, I get pics of people in swimwear. Some people get off on swimsuit shots. Suddenly, it's porn.

This puts up a whole "IF" to the "it's legal in public to shoot without concent" issue.

I go to the local ren faire. I shoot the babes in bodices. Guess I'm now shooting porn? Oh ****, that girls only 16, jailbait! Double crap! I shoot that because I like the costumes and the environment. But I shoot alot more babes than knaves. And, yes, I have (with permission) shot deep cleavage shots on occasion.

Course, most of my more personal work and ALL of my intimate work that I post I have a signed release for, which exempts me from this law.

I suspect that this law is one of those "excuse" laws, something to hold someone an extra 24 hrs while they dig around for something more substantial to stick.


So what about your photography Bob? You're not a perv but it is explicit enough that someone could get excited from it. Sometimes just the suggestion of sex is enough for some people. It doesn't take much to get a fantasy started in anyone's mind, provided they see something that typically stimulates them.

But that wasn't the original intent of your photography. Yet someone else can get excited by it and that makes you a perv?

I shoot art. I don't shoot porn. The fact that some of my subjects are nude or in varying states of undress does not make it porn. The fact that someone else might get excited over it, to the extreme of gratifying to it, still does not make it porn. If that is the sole determination of porn, then many a Sears catalog and issue of National Geographic is porn.


They frequently aren't. Our legal and judicial systems are still all we've got however.

I would be personally offended if I had a minor daughter and some guy was taking stroke pictures of her at a soccer game. I am pleased my state criminalizes behavior like this.

I've been hassled trying to take action shots, to the extent that I gave up. I wasn't taking spank material, but trying to perfect my craft. People in public are fair game to photograph. Publishing is a separate rights discussion. But because I wasn't a parent, or the official photographer, I got grief, and I got called a pervert. I don't need the headache so I gave up shooting sports outside of martial arts events I'm specifically invited to.


Sooooo still leaving NYS for Texas :D

Eventually. For now I'm stuck in NY seeking funding to open a portrait studio here.

[Bill Mattocks]

Now you're putting words in my mouth. I haven't seen the pictures in question but I had assumed they were shots of "boobs, butts, and legs" either singly or in combination. If an accurate characterization, the pictures would indeed pervy, and I would support prosecution.


The newspaper article says they were photos of clothed torsos. No head, no feet. You could call that 'boobs, butts, and legs' or you could call it torsos. I guess it depends on what kind of spin you put on it.

And again, the law itself says nothing about what is being photographed. Clothed torsos or clothed boobs and butts. You could be photographing feet, if that was your fetish - as long as it aroused your prurient interest. I'm not putting words in your mouth, I'm describing the law itself.

I know of guys who get off looking at photos of women smoking cigarettes. Weird, huh? But they do. And they collect such photos. Now, in Texas, such photos taken in public would violate this law - if the person taking them was one of those odd people who gets off on that.



We do imprison people who spy on others and so violate their privacy rights. Is there a right to not be the subject of someone's elses pornography? If not, there should be.

The law is clear on privacy rights in public - you don't have any. There is no legal expectation of privacy in public, period; that's been all the way to the US Supreme Court, so it's settled law. You cannot 'spy' on a person who is in public, you cannot violate their privacy unless they have some legal expectation of privacy - examples would be upskirt photos or photos taken in a public bathroom. Girls playing soccer on a public soccer field? No expectation of privacy, sayeth the law.

As to the use to which photographs are put - the law has also ruled on that one. A person may take a photograph of anyone in public and do anything they wish with it - but they may be subject to civil penalty (lawsuit) if they do certain things with it, such as sell it for commercial use, or use it to defame the person pictured. Some sorts of people (like famous ones) don't even have that right. Hence the paparazzi photos of celebrities picking their noses taken with long-range lenses on public beaches, etc. If it's in public, it's fair game.

The long and the short of public photography of people (outside of Texas) has been that if you do not want to be photographed, do not go out in public. Seriously. The onus is on you, not the photographer. And although you may not like it (many don't), that's the law according to the Supreme Court.

That's part of the reason I remain shocked that this Texas law hasn't been torn apart for being unconstitutional yet.

[Xue Sheng]

Eventually. For now I'm stuck in NY seeking funding to open a portrait studio here.

Well from the sounds of the law it is better to open it here than there :D

[Stac3y]

You know, the guy who takes photos of women for Sports Illustrated's Swimsuit issue could just as easily be arrested if he took any of those photos in Texas. After all, he intentionally photographs those women to make them look as sexy as he can - clearly appealing to prurient interest.



Sorry, Bill, but nope. This photographer didn't meet the first criterion listed in the law: that the subject be photographed without his/her consent. BOTH criteria--lack of consent AND prurient intent--must be met to make this a crime.

Not that I think it's a good law, but if it's being discussed, it should be described accurately.

[Bill Mattocks]

Sorry, Bill, but nope. This photographer didn't meet the first criterion listed in the law: that the subject be photographed without his/her consent. BOTH criteria--lack of consent AND prurient intent--must be met to make this a crime.

Not that I think it's a good law, but if it's being discussed, it should be described accurately.

You are right, I stand corrected. Thanks!

[Flea]

So you've got a guy who likes porn (who here doesn't) and who keeps it in his car (dumb but I guess it happens). Then he takes photos of young girls playing soccer. Fully clothed. In public. And by adding A + B, we come up with C. But A and B are not illegal, and C isn't illegal either, except in Texas.



This is a forehead-slapper, but sometimes it's worthwhile to ask dumb questions. Supposing he's just a lousy photographer who happens to have a taste for naughty magazines? I've taken countless headless photos in my life. Everyone has. I wonder if the judge in Clark's case has considered this.

[Bill Mattocks]

This is a forehead-slapper, but sometimes it's worthwhile to ask dumb questions. Supposing he's just a lousy photographer who happens to have a taste for naughty magazines? I've taken countless headless photos in my life. Everyone has. I wonder if the judge in Clark's case has considered this.

Well, it hasn't gotten that far yet; he just got arrested.

And some might say he'll probably be able to get off - after all, it's really hard to prove his 'intent' in taking the photos was 'prurient'. As you said, just because he likes porno (the legal adult kind), that does not necessarily mean he's also into taking photos of underage girls for the same reasons.

But consider also the costs. He will probably lose his job, I could easily picture his wife leaving and his kids disowning him. His name will shortly be mud for all intents and purposes, none of his friends will want to be around him, etc. He may end up having to spend thousands - tens of thousands - just to prove he's not the perv he's been accused of being.

Or he might well be a perv. But in this case, is justice being served? Is anyone harmed?

[dancingalone]

Or he might well be a perv. But in this case, is justice being served? Is anyone harmed?

You say no. I say yes.

[Bill Mattocks]

You say no. I say yes.

I understand your point of view. I just disagree with it. If we take it to extremes, 'harm' of the sort that is not physical would have people being arrested and put in prison for hurting people's feelings. In general, the law prefers to punish behavior that harms a person or society in a real, measurable, demonstrable way. Things that might get in amongst someone and cause them nightmares are generally not reasons to send a person to prison.

Put another way, which I keep trying to express, if I were standing there next to Mister Pervy, taking the same photo, but without sick thoughts running through my head, they're the same photos. They look the same, they are the same, and from the point of view of the parents, the two of us look exactly as 'suspicious' to them; couple of strangers taking photos of young girls playing soccer. But my state of mind makes me an innocent man; Mister Pervy's state of mind makes him a criminal. According to your definition, he has harmed your child; and I have not. How is this possible? The photos are the same. You cannot know what is or is not in my mind when I took the photos. I cannot grasp how the harm can be defined, let alone proven. And I can't see it as a reason to put a man in prison, even if he is a sicko.

[dancingalone]

I'd really like to see the photos in question. I may be cynical but I just can't imagine they're as innocuous as you suggest they could be, Bill.

On a purely philosophical level, you've got a good argument. My contention is that as imperfectly as this law may be written, it still has has the common weal of the public at heart. I believe in the basic decency of law enforcement officials. I do not believe they would be prosecuting this 65 year old man if they did not feel he was injuring others.

[Cryozombie]

I'd really like to see the photos in question.

PERV! You should be jailed!

[Bill Mattocks]

I'd really like to see the photos in question. I may be cynical but I just can't imagine they're as innocuous as you suggest they could be, Bill.

On a purely philosophical level, you've got a good argument. My contention is that as imperfectly as this law may be written, it still has has the common weal of the public at heart. I believe in the basic decency of law enforcement officials. I do not believe they would be prosecuting this 65 year old man if they did not feel he was injuring others.

I have no doubt the photographs are not 'innocuous'. I'm reasonably convinced the guy is a perv. However, as a photographer, I am perfectly aware that there are non-perv photos of body parts that look the same to the untrained eye. In any case, perv or not, these photos were clothed females in public. If they were nude, they'd have not been in public. If they were upskirts or something of that nature, the story would (I believe) have mentioned it. So the guy takes a photo of a clothed breast. Not 'lewd' from my point of view. A little weird, but not obscene. Good Lord, they show naked men's asses on broadcast TV now.

Here's one:

http://www.statesman.com/news/content/news/stories/local/05/01/0501roundup.html?cxtype=rss&cxsvc=7&cxcat=52


Friday, May 01, 2009 TRAVIS COUNTY
Topless photo case dismissed
Travis County prosecutors have dismissed an improper photography charge against a Houston man found taking pictures of topless women near Hippie Hollow Park in August.
Phu V. Nguyen, 57, was arrested by a Travis County park ranger Aug. 9 and charged with the state jail felony offense. The ranger, Jeff Allbritton, wrote in an affidavit that he thought the photos were taken in a deviant manner.
The women were swimming and sunbathing near the popular nude park on Lake Travis, the affidavit said.
"There wasn't sufficient evidence to show it was done ... with an intent to arouse or gratify," Assistant District Attorney Claire Dawson-Brown said.
The case was dismissed April 3, according to court records.


Was the guy a perv? I'm sure he was. The women were topless and in public and he took photos of them. I'm sure because he thought that was nifty and keen. But the court could not prove his intent to gratify or arouse so they dropped the charges. All is well, no harm done, right?

Well, no. He had to retain a lawyer, I'm sure it cost him a pretty penny. I'm sure it didn't do his homelife or his work life any good. Did he lose his job?

Here's another:

http://www.mysanantonio.com/news/MYSA111405_1A_ImproperPhotography_72f15ad_html5973 .html


In a flash, a snapshot at a high school football game developed into evidence.
Robert Earl Thompson III was arrested last month while snapping what police say were inappropriate photos of young women at a high school football game between Marshall and Taft.
According to police, the images — captured through the eye of a 300 mm telephoto lens — were taken without permission and intended to stir sexual desire.

...

But Thompson's case has left some confused about how the law distinguishes between shutterbugs with ulterior motives and professional or amateur photographers practicing their craft. Thompson took his pictures in a public venue at the Oct. 8 game, surrounded by cheering parents and students, many with cameras of their own.
The question arose for one local photojournalist who shoots high school football every week: What is improper photography?
"When I started 20 years ago doing this, the basic consensus was — if you can see it in a public place, it's fair game. They're fair game," said Todd Stricker, a past president of the National Press Photographers Association. "That may not be the case anymore."


Thompson also had pornographic materials in his car. He plead guilty and went to prison. Police said his photos were mostly 'cleavage' and 'legs'.

http://nl.newsbank.com/nl-search/we/Archives?p_product=DM&p_theme=dm&p_action=search&p_maxdocs=200&p_topdoc=1&p_text_direct-0=10DA509259C81CE8&p_field_direct-0=document_id&p_perpage=10&p_sort=YMD_date:D&s_trackval=GooglePM


Man cleared in photography case
Southlake: Prosecutor likened images to 'vacation photos' (http://nl.newsbank.com/nojavascript.html)
Author: JEFF MOSIER Staff Writer
Publish Date: November 2, 2005
Word Count: 282
Document ID: 10DA509259C81CE8
The Tarrant County district attorney's office has cleared a North Richland Hills man accused last month of the crime of improper photography. Southlake police said at the time that Louis J. Vogel took unwanted photos of women and children that could be intended for sexual gratification. After Mr. Vogel's arrest, authorities would not describe the pictures.

http://dallas.org/node/88


Southlake Dads: Take a Picture, Go to Jail?

Submitted by Allen Gwinn on Sat, 10/15/2005 - 17:21.
That picture you just snapped of the cute cheerleader at a Southlake sporting event could land you in jail accused of a felony, and get your face in Dallas' news media accused of a sex crime.
Couldn't happen, you say? Get ready for this: it could.
A Southlake Police Department spokesperson so much as told us so, and last weekend's arrest of North Richland Hills resident Louis Vogel may prove it.
Vogel, 60, was walking around Southlake's Oktoberfest snapping pictures of people with a digital camera--among them, women and children.
According to sources, a woman complained to a police officer about Vogel's suspicious behavior. Police responded by stopping Vogel and examining his camera. On it, as Southlake Police news interviews would later detail, police found 12 pictures that depicted "specific parts of women's and children's bodies."
Perhaps, however, it would be more accurate to say that police found pictures of clothing covering "specific parts of women's and children's bodies."
You see, all Vogel's "victims" were fully clothed and milling about in a public venue.
Vogel was arrested and accused of a felony by Southlake Police under a relatively new law passed in 2004 titled "Improper Photography or Visual Recording." It reads, simply:

A person commits an offense if the person: (1) photographos or by videotape or other electonic means visually records another: (A) without the other person's consent; and (B) with intent to arouse or gratify the sexual desire of any person;
Yes, but who makes that determination?



...

Southlake has quite a high school sports community. Could a Southlake dad actually be arrested for taking pictures at a Southlake sporting event--say, photographing cheerleaders at a football game.
We posed the question to Douglas. Her answer made it clear that it's not out of the question!
"I think I see where you're going with this," said Douglas, "it depends on what the picture is focusing on."
If it is a "general" shot, then a person is "probably OK." However, Douglas said, "if someone zooms in on the crotch area (they could be arrested)."
What is a "general" shot? What constitutes "zooming in?"
Who judges the shot?
According to Douglas: "our investigators."


Mr. Vogel was released from jail and charges were dropped. Of course, his life is somewhat wrecked, but that the heck, huh? We stopped a dangerous predator. Who took photos at an outdoor fair. Wonder if he got made somebody's ***** while he was in? That'll teach him.

To be clear - a quick search of Google News archive shows that most of the reported arrests for "improper photography" in Texas are people who are doing things that would be a crime in any state - like using camera phones to take photos up women's skirts, or planting video cameras in restrooms. And I have no problem with that. But I do think the law is overly broad, and too easily abused, and I think there is evidence that this has in fact happened. It may seem a small price to pay - until it happens to you.

[Bill Mattocks]

Here's a similar situation (I was looking for it earlier and just found it). Not in Texas, but a similar issue:

http://reason.com/blog/2009/05/04/grandma-arrested-for-child-por


Grandma Arrested for Child Porn (http://reason.com/blog/2009/05/04/grandma-arrested-for-child-por)

Radley Balko (http://reason.com/people/radley-balko) | May 4, 2009
Back in 2005 (http://ydr.inyork.com/ci_12279968), a WalMart worker in Pennsylvania reported 59-year-old Donna Dull to local authorities after Dull dropped off some film that included shots of her three-year-old granddaughter in and just out of the bath. Dull was arrested—roughly, she says—and charged with producing and distributing child pornography. The charges were dropped 15 months later when a Pennsylvania special prosecutor overruled the local DA. Only Dull, her attorney, and police and prosecutors have apparently seen the photos, which are now under seal. She's now suing.



...


So because the photo could have been interpreted as pornographic by someone who was looking for child porn, arresting the woman and ruining her life (or at least severely disrupting it) was the "right thing" to do. From the description, we aren't talking about splayed legs or exposed genitalia, here. It's a kid's butt, and a playful peer over the shoulder.

...


David Cook, now in private practice . . . declined to say if he disagreed with Rebert's decision to dismiss the charges.
He did say, "There was no legitimate purpose for those photographs. I would never pose my daughter or my step-daughter like that.
"It kind of boils down to a gut feeling. If it feels wrong, it probably is."


Want to go to prison not for breaking a law, but based on some prosecutor's 'gut feeling'?

...



"It's a subjective versus objective standard," Moore said. "You think it's cute. Someone else might think different. That doesn't make it a crime.
"Lots of sexual offenders use the Sears catalog to get off. That doesn't make (the catalog) illegal."
"It's a reasonable person standard with the reasonable person being a juror," Boyles said.
"And reasonable people can disagree," Moore said. "That's the gray area. That's when it comes to us."
Boyles and Moore also agreed that parents don't need to worry unnecessarily.
"Family pictures are family pictures," Boyles said.
"But if more of your pictures of your kids are of them naked rather than clothed, you might have a problem."