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, 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?