Forgive the sensationalist headline, this doesn’t actually have to do, per se, with the US or Texas Supreme Courts. Rather, it concerns two recent cases out of the Texas Court of Criminal Appeals and the the State’s Fourth Court of Appeals in San Antonio, respectively.
The first case is a few weeks old and I initially ignored the news until I realized it could be part of a growing and disturbing trend. The Houston Chronicle reported the story of the San Antonio Appeals court throwing out the “Improper Photography statute.” Mark Bennett once railed against this law, claiming that it could outlaw a whole slew of otherwise innocuous photography. The law, codified as Section 21.15, defines the crime of “improper photography” as taking a recording of an individual without their consent and with an intent to sexually gratify themselves. The law was recently used as a catalyst for a class-action lawsuit against a “Revenge Pornography” website.
Accordingly, when the law was thrown out, one wonders what ridiculous enforcement was used for the test case. An other innocuous photograph? “Revenge porn” pictures that, when first taken, were consensual? In fact, the case involved an adult man who went to Seaworld to take pictures of scantily-dressed “swimsuits” children, ages 3 to 11.
In a statement released from Bexar County Prosecutor Susan Reed, whose office prosecuted the case and is planning on appeal, harsh words were said for the panel.
“When approached by park security, Thompson attempted to delete the photographs on his camera before it was seized. Police examination of the camera revealed 73 photographs of children in swimsuits, with most of the photographs targeting the children’s breast and buttocks areas.”
There is very little doubt that these photographs were to be used for sexual gratification. Normal people do not take those types of photos, only pedophiles do.
In the other case, which occurred on Wednesday, the Houston Chronicle reports that the Texas Court of Criminal Appeals struck down a significant chunk of a 2005 law banning lewd online talk to minors. Perhaps more disturbing, the 9-0 Republican court did so unanimously. In that case, an adult man (53 years of age) sent sexually explicit and suggestive messages to an underage teenager. Bennett, the aforementioned attorney, argued this case on behalf of the original defendant/pedophile.
The High Court ruled that the law was too broad, possibly outlawing any communication that included lewd material (the article references books, movies or Miley Cyrus’ recent twerking). In my personal layperson opinion, this is somewhat foolish. Rather, prosecutions simply should not occur unless the defendant is actively discussing lewd topics and engaging in sexually explicit behavior as the subject matter of her/his interaction with the minor. If it is an inadvertent or otherwise miniscule component of the interactions, prosecutors should use their best discretion.
Since the Court of Criminal Appeals is the court of last resort on issues of state constitutionality, the law may only be reinstated by amending the constitution. Expect that to be a big priority in the 84th Legislature. Meanwhile, the Harris County District Attorney’s office lamented the decision, noting “It’s been a really valuable tool to help us capture folks who prey on children. We’ve been able to pull some really dangerous people off the street because of it.”
The rationale used on these cases could have profound impact on other laws designed to protect children from pedophiles. The law prohibiting the solicitation of sex from a minor could come under fire because of the Court of Criminal Appeals’ recent decision. After all, the defendant in that case claimed his messages were sent in jest and did not actually merit malice. Additionally, the law banning indecent exposure could be threatened, as it relies on a similar frame as the improper photography law. In that case, the Court mused declared the idea of the crime resting upon whether or not the defendant sought to sexually gratify her/himself would be overbroad and resting too heavily upon thoughts. But that is how we decide indecent exposure charges in this State. A slippery slope could be ahead of us.
Texas court are usually hard of crime. Often time too hard, in my opinion. But they have recently been getting soft of pedophilia.