Woman contacts an organization and says "The head of your organization had an affair with me 25 years ago when I was his subordinate, and the 'MeToo' movement has motivated me to finally do something about it. Tell him he has to resign or I will release compromising sexual videos of us I've held on to all this time."
Is the threat itself a crime? There's no demand for a payment or anything else to be prosecuted as theft. And no one involved is a public official so none of the Abuse of Office statutes would apply.
The release of the videos themselves seem like they'd be a SJF under 21.16, Unlawful Disclosure or Promotion of Intimate Visual Material. And I guess any media outlet that did the same might be guilty of the same crime depending on what they showed.
And there also might be an argument for Harassment, because she's threatening (probably unwittingly) to commit the 21.16 felony and arguably doing it to alarm the person she wants to resign. But probably not; the "alarm" angle seems kind of thin.
And of course, there's probably a million civil actions a personal injury attorney would know about that are completely foreign to me.
But I don't think that making a threat to do something incredibly embarrassing and personally damaging to someone unless they do what you say is a crime (if you're not a public official). Other states have statutes that cover extortion/ blackmail without financial trade-offs, but as far as I can tell from my research, the theft angle is necessary to prosecute something like this in Texas, Harassment and Unlawful Disclosure not withstanding.
Thoughts on any other angles I'm missing?
Just a wild thought, but, could you count the loss of the "victim's" salary and benefits as something she threatens to deprive him (I assume its a him) of?
I thought about that too, but in this case the victim actually donates his salary back to the organization already, so he doesn’t actually get a salary.
You can argue that the firing of the person is a benefit to the defendant and therefore the threatening to disclose the intimate visual material is a SJF 21.16(c). There should also be no First Amendment issue with this section of 21.16 as blackmail or extortion are categorically unprotected speech.
Good luck proving that a resignation provides a benefit.
Although it FEELS like blackmail or extortion, it isn't. The behavior simply doesn't match the applicable penal code definitions.
Sometimes this phenomenon of common English words not matching the statutory definition works the other way. For example, some behavior that doesn't FEEL like the vernacular understanding of the word "stalking" nonetheless matches the definition in 42.072.
It is pretty clear that 21.16 restricts speech based on content, which subjects it to strict scrutiny. It won't survive in its current state. Even if you get past the facial as-written problem with 21.16, this particular issue would probably also fail an "as-applied" test.
The lead of the organization should just fess up to the affair and own it. The storm will pass. Our president still has a 90% approval rating with his base after admitting kinky hotel sex with a porn star that occurred while his 3rd wife was home with their infant son. Just admit the affair and then (almost) nobody will care about the video.
There's a SJF in new PC 21.18 ("Sexual Coercion") that covers extortion in this type of situation, but only if done to obtain "a monetary benefit or other benefit of value." We all know the PC definition of "benefit" is quite broad, but that bolded "of value" qualifier is a complicating factor.
So ... maybe not a crime yet? Who knows.
Shannon, I agree with you that it wouldn't fit the definition of benefit with the qualifier under 21.18. I still think you could argue that the benefit under 21.16(c) with no qualifying language may be satisfied by the resignation. It may be a benefit to the defendant because it is something that they clearly want.
Also Jon, I still wouldn't be worried about a facial or as applied challenge to 21.16(c) there is no protected speech or conduct that would be covered by that section. I have briefed that issue so if you decide to go this route I am more than happy to share if that is raised.
If the gravamen of 21.16(c) is "visual material depicting another person with the person's intimate parts exposed" that is protected speech.
If expanded to "without the consent of the depicted person" you get traction, but expanded to the context of the entire disclosure (ie: video plus explanation) and you have a #MeToo expression warning to others of the guy's predatory history, and that there lies an as applied issue.
Framing is essential.
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