Elements of Invasive Visual Recording Under Section 21.15

Over the past ten years, Texas has seen an explosion in the prosecution of criminal defendants for the sex-related crime of improper photography or visual recording charged under § 21.15, Penal Code. Although this statute was created in 2001, prosecutions have become more frequent because of the development of the internet and the availability of inexpensive computers, digital cameras, and equipment. These new technologies have made it easier to secretly photograph or videotape sexual conduct without consent and spread pornography including revenge porn.

Criminal charges for violations of Section 21.15, of the Penal Code, are particularly serious because the cases often involve multiple images or video recordings, each of which can be prosecuted separately. Additionally, for these crimes, judges in Texas have the discretion to order a defendant to serve consecutive sentences following a single trial.

Under Texas Penal Code Section 21.15, invasive visual recordings are charged as a state jail felony. Each element of the offense must be proven beyond all reasonable doubt including:

• The defendant photographed or videotaped or used other electronic means to record, broadcast, or transmit a visual image;
• With intent to invade the privacy of the other person;
• Without the other persons consent;
• Of an intimate area of another person;
• If the other person has a reasonable expectation that the intimate area is not subject to public view;
• Photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room; and
• Knowing the character and content of the photograph, recording, broadcast, or transmission.

The statute also prohibits promoting a photograph, recording, broadcast, or transmission described above.