Frank Svetlik Child Pornography Defense Attorney
 

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Houston criminal attorney, Frank Svetlik, has focused his practice on the agressive defense of child porn and related criminal charges brought in Texas and Federal Courts.

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 5 years, 10 years and 15 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.

Approximately 15% 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 Law:

PENAL CODE

TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY

CHAPTER 43. PUBLIC INDECENCY

Sec. 43.261. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR.

(a) In this section:

(1) "Dating relationship" has the meaning assigned by Section 71.0021, Family Code.

(2) "Minor" means a person younger than 18 years of age.

(3) "Produce" with respect to visual material includes any conduct that directly contributes to the creation or manufacture of the material.

(4) "Promote" has the meaning assigned by Section 43.25.

(5) "Sexual conduct" has the meaning assigned by Section 43.25.

(6) "Visual material" has the meaning assigned by Section 43.26.

(b) A person who is a minor commits an offense if the person intentionally or knowingly:

(1) by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material; or

(2) possesses in an electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

(c) An offense under Subsection (b)(1) is a Class C misdemeanor, except that the offense is:

(1) a Class B misdemeanor if it is shown on the trial of the offense that the actor:

(A) promoted the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or

(B) except as provided by Subdivision (2)(A), has previously been convicted one time of any offense under this section; or

(2) a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been:

(A) convicted one or more times of an offense punishable under Subdivision (1)(A); or

(B) convicted two or more times of any offense under this section.

(d) An offense under Subsection (b)(2) is a Class C misdemeanor, except that the offense is:

(1) a Class B misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted one time of any offense under this section; or

(2) a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted two or more times of any offense under this section.

(e) It is an affirmative defense to prosecution under this section that the visual material:

(1) depicted only the actor or another minor:

(A) who is not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time of the offense; or

(B) who was the spouse of the actor at the time of the offense; and

(2) was promoted or received only to or from the actor and the other minor.

(f) It is a defense to prosecution under Subsection (b)(2) that the actor:

(1) did not produce or solicit the visual material;

(2) possessed the visual material only after receiving the material from another minor; and

(3) destroyed the visual material within a reasonable amount of time after receiving the material from another minor.

(g) If conduct that constitutes an offense under this section also constitutes an offense under another law, the defendant may be prosecuted under this section, the other law, or both.

(h) Notwithstanding Section 51.13, Family Code, a finding that a person has engaged in conduct in violation of this section is considered a conviction for the purposes of Subsections (c) and (d).

Added by Acts 2011, 82nd Leg., R.S., Ch.1322, Sec. 3, eff. September 1, 2011.


Sec. 43.27. DUTY TO REPORT. (a) For purposes of this section, " visual material" has the meaning assigned by Section 43.26.

(b) A business that develops or processes visual material and determines that the material may be evidence of a criminal offense under this subchapter shall report the existence of the visual material to a local law enforcement agency.

Added by Acts 2003, 78th Leg., ch. 1005, Sec. 6, eff. Sept. 1, 2003.

Law Office of Attorney Frank Svetlik

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