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Public Indecency - Electronic Transmission of Certain Visual Material Depicting Minor

by Frank Svetlik

The Texas Penal Code Section 43.261 provides the definition of the crime of Public Indecency - Electronic Possession of Certain Visual Material Depicting Minor.

Youngsters sending pictures of themselves to their friends can be called to task and be held liable under the provisions of this statute. The minimum sentence of five years for a teenage girl sending what she believes to be a private picture to her friends, a practice sometimes referred to as sexting, did not seem inappropriate to federal prosecutors who argue that sexting fits the literal definition of child pornography. The United States Supreme Court has recognized that unwise juvenile behavior is not necessarily a criminal act.

“Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (plurality opinion).

Protecting children from sexual abuse, the avowed intent of most child pornography laws, is not achieved by prosecuting teenagers for sexting. The Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002) recognized the child as a victim in child pornography cases. Sexting prosecutions do not have the child victim.

Not protected by the policy identified in the Supreme Court cases is the solicitation of a minor to send images of the minor to an adult. Convictions carry minimum sentences of five years, ten years and fifteen years. Prohibited conduct includes inducing a minor to participate in sexually explicit acts, possessing or distributing images of a minor engaging in sexually explicit conduct, conspiring to do any of these deeds. The sale, use or possession of visual images of them minor engaging in sexually explicit conduct is prohibited in the broadest terms.

There are affirmative defenses which a child pornography lawyer must carefully review to determine if the material possessed by the accused shows actions of persons who were actually adults at the time the images were made. The statute criminalizes altering images involving adults to make it appear that some or all of those persons involved in the sexual acts were minors. There are additional provisions for affirmative defenses for minors who are within two years of age of one another and were dating or married.

Approximately fifteen percent of the persons accused of child pornography offenses were discovered to have child pornography in their possession only after the they were involved in a solicitation of a law enforcement official posing as a minor.

The Texas Penal code section 43.27 requires all businesses which develop or process visual material and determines that the material may be evidence of a criminal offense under this the Texas Penal Code to report the existence of the visual material to a local law enforcement agency.

If you have reason to be concerned about the issues addressed in this writing call Attorney Frank Svetlik 713.724.8538, an attorney familiar with matters of interest to those accused of sexual exploitation of children or possession or distribution of Child Pornography.