Texas: Improper Photography

[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

 

[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

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

 

[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!