TITLE: Relating to the creation of the offense of unlawful disclosure of intimate visual material.

SUMMARY: Relating to the creation of the offense of unlawful disclosure of intimate visual material.

FULL TEXT:
AN ACT relating to the creation of the offense of unlawful disclosure of intimate visual material. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 21, Penal Code, is amended by adding Section 21.16 to read as follows: Sec. 21.16. UNLAWFUL DISCLOSURE OF INTIMATE VISUAL MATERIAL. (a) In this section: (1) "Dating relationship" has the meaning assigned by Section 71.0021, Family Code. (2) "Intimate parts" means the naked genitals, pubic area, anus, buttocks, or female nipple of a person. (3) "Sexual conduct" means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse. (4) "Simulated" has the meaning assigned by Section 43.25. (5) "Visual material" has the meaning assigned by Section 43.26. (b) A person commits an offense if: (1) without the consent of the depicted person, the actor intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting the person: (A) with the person's intimate parts exposed; or (B) engaged in sexual conduct; (2) the disclosure of the visual material causes severe emotional distress to the depicted person; and (3) the visual material was obtained by the actor or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private, or the actor: (A) discloses the visual material with the intent to: (i) harass, annoy, alarm, abuse, torment, or embarrass the person; or (ii) obtain a benefit in return for or in connection with the disclosure; or (B) obtains a benefit in return for or in connection with the disclosure. (c) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor. (d) It is a defense to prosecution under this section that: (1) the disclosure is made in the course of: (A) lawful and common practices of law enforcement or medical treatment; (B) reporting unlawful activity; or (C) a legal proceeding, if the disclosure is permitted or required by law; or (2) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consists of visual material provided by another person. (e) An offense under this section is a Class Bmisdemeanor, except that the offense is: (1) a Class A misdemeanor if it is shown on the trial of the offense that the defendant has previously been convicted one or two times of an offense under this section; (2) a state jail felony if it is shown on the trial of the offense that the defendant has previously been convicted three or more times of an offense under this section; or (3) a felony of the third degree if it is shown on the trial of the offense that: (A) the defendant was 18 years of age or older at the time of the offense; and (B) the depicted person was younger than 18 years of age. (f) At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (e)(3), the defendant may raise the issue as to whether the defendant: (1) was not more than two years older than the depicted person at the time of the offense; and (2) was in a dating relationship with the depicted person when: (A) the visual material was created; or (B) the defendant obtained the visual material. (g) If the defendant proves each issue described by Subsection (f) in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (e)(3) does not apply. (h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. SECTION 2. Section 21.16, Penal Code, as added by this Act, applies to visual material disclosed on or after the effective date of this Act, regardless of whether the visual material was created or transmitted to the actor before, on, or after that date. SECTION 3. This Act takes effect September 1, 2015.