I need help with this scenario – i.e., is this an Improper Photography (21.15 TPC) case or not:
Girl 1 has child with guy. Guy starts dating Girl 2. Girl 1 finds a pic of Girl 2 topless on guy’s phone. Girl 1 posts the topless pic on Facebook & Instagram and calls victim bad names. The elements read that a person commits a crime if the person: photographs or by videotape or electronic means, records, broadcasts, or transmits a visual image of another at a location that is a bathroom (it is in this case) A) without the other person’s consent, and B) with intent to invade the privacy of the other person.
Suspect can also be charged if: knowing the character and content of the pic, they promote it.
Q1: do you think the defendant has to be the one who actually photographs or records, or do you think the statute reads that they can simply transmit a visual image?
Q2: do you think Girl 2 waived her privacy claim by sending it to someone in the first place?
Q3: what the heck does “knowing the character and content” mean? Do we have to prove the same elements as the underlying (lack of consent and intent to invade privacy)?
OK, I'll attempt this one..
Q1. simply transmitting is enough.
Q2. No. Girl 2 sent this to Guy 1. If Guy 1 shared it, there might be an issue of whether G2 waived or not. However, if Girl 1 is getting the pics from the guy without his knowledge, I think there is a privacy issue. Also, you have to look at the intent...it is with intent to invade another's privacy...
Q3. OK, "knowing character and content" may be a little more squishy, but I think that a picture of a person in a bathroom with clothes on but doesn't see a person in the bathtub in the background who is showing some skin might be an example of NOT knowing character and content...... but that would be a question for the jury.
Hope this helps...
Just keep in mind that the Fourth Court has ruled this statute facially unconstitutional. Coupled with the CCA ruling yesterday striking down a portion of the online solicitation statue on nearly identical reasoning, I would be cautious here.
Thank you both for the comments
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