Texas: Improper Photography

[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/conte.../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...page=10&p_sort=YMD_date:D&s_trackval=GooglePM

[FONT=arial, helvetica][SIZE=-1][FONT=Arial, Helvetica][SIZE=-1][URL="http://nl.newsbank.com/nojavascript.html"]Man cleared in photography case
Southlake: Prosecutor likened images to 'vacation photos'

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.[/SIZE][/FONT][/SIZE][/FONT]

[/URL]

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

Radley Balko | May 4, 2009
Back in 2005, 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."
​