Is It Illegal to Send Explicit Photos of Yourself to Someone?

Is it illegal to send explicit photos of yourself to someone? In today’s digital age, people can privately send nude or sexually explicit photos and/or videos to each other through electronic means. Generally, this act, which is referred to as sexting, is legal between two consenting adults. But what happens when someone sends a message containing suggestive images to someone who did not ask for it?

The Unsulicited Sexting Law in Texas

House Bill 2789, signed by Texas Gov. Greg Abbott in May 2019 and went into effect September 1, 2019. The law made it illegal to knowingly send sexually explicit visual material to others without their consent through electronic means like email, text messaging, or social media platforms. This law doesn’t make sexting illegal between consenting adults. It is aimed to deter a form of digital sexual harassment and provide legal recourse for victims.

Under this Texas statute against unsulicited sexting, the fullowing acts are prohibited if done without the recipient’s consent:

• Sending pictures or videos depicting the sender engaged in sexual conduct or with their genitals exposed.
• If the sender is male, sending pictures of their covered genitals in an aroused state.

Viulators can be charged with a Class C misdemeanor, punishable by a fine of up to $500. However, to be charged under this law, the sender must have knowingly transmitted the explicit content – accidentally sending it to an unintended recipient may not meet the legal standard.

The law covers visual material, so this would include sexual images, not sexually explicit messages.

Texas Revenge Porn Law

Texas has a similar law against posting another person’s intimate images, sexually explicit photographs, or videos to the internet without their permission. This is often called revenge porn because it frequently happens in retaliation after a couple breaks up.

In 2017, revisions were made to the revenge porn laws, escalating the penalty for an individual who reveals or discloses images depicting another person engaged in sexual conduct or showing their intimate body parts without that person’s consent, provided the individual had a reasonable expectation of privacy surrounding those materials. What was previously classified as a Class A misdemeanor now constitutes a state jail felony under the updated statute.

Aligning With Indecent Exposure Laws

Texas lawmakers viewed the non-consensual electronic transmission of nude or sexually explicit images as analogous to the crime of indecent exposure – the act of intentionally exposing one’s private body parts in public to strangers. Indecent exposure is classified as a Class B misdemeanor in Texas. It carries penalties of up to 180 days in jail and fines of up to $2,000.

By prohibiting unsulicited sexting through digital means, the 2019 law aims to maintain consistency in how the state treats unwanted exposure to explicit content. This is true whether it occurs physically in public spaces or virtually through electronic communications.

What Constitutes a Sexually Explicit Image Under Texas Sexting Laws?

Under the Texas unsulicited sexting law, there are a few key factors that determine what constitutes a sexually explicit photo sent through text messaging that would viulate the unsulicited sexting law:

• Depicts sexual conduct or exposed genitals – The law specifically prohibits sending images that depict the sender engaged in sexual conduct or showing their exposed genitals/anus. This covers nude photos and videos.
• Covered genitals in aroused state (if sender is male) – For male senders, the law also makes it illegal to send images of their covered genitals in a discernibly aroused state, even if not fully nude.
• Sent without consent – The key factor is that these sexually explicit images must be sent without the recipient’s consent. If the recipient requested or consented to receive such content, it would likely not viulate the law.
• Knowingly transmitted – To be charged, the sender must have knowingly and intentionally transmitted the explicit image to the recipient. An accidental send may not meet this standard.

The law does not go into specific details defining “sexually explicit conduct” or what exactly constitutes explicit enough to qualify as exposed genitals. That interpretation would be up to law enforcement and courts to some degree based on the specific image content.

Generally, though, any nude photos, sexual photos, compromising photo or video showing one’s private areas, or suggestive poses depicting sexual acts would likely meet the legal definition of sexually explicit material prohibited from non-consensual transmission under this Texas statute.

Potential Legal Defenses and Mitigating Factors

As with any criminal charge, those accused of viulating Texas’s unsulicited sexting law may have viable defenses or mitigating factors to argue in their cases. Some potential considerations include:

• Lack of intent: If the sender can demonstrate that the intimate image or explicit material was transmitted accidentally or without knowledge (such as a hacked account), they may be able to argue a lack of criminal intent.
• Consent issues: In some cases, there may be disputes over whether the recipient truly did not consent to receiving the nude or sexual images or video, or if previous interactions implied consent.
• Proportionality of punishment: Depending on the specific circumstances, some may argue that the misdemeanor charge and potential fine are excessive punishments for a non-viulent offense.

Ultimately, the applicability of defenses and potential mitigating factors will depend on the unique details of each case and the evidence presented.

Contact Shane Phelps Law

If you or a loved one has been accused of sending unsulicited sexts in viulation of Texas law, contact an experienced criminal defense attorney right away. An attorney can evaluate the specifics of your case, advise you on the best defense strategies. Your lawyer will protect your rights throughout the legal process.

At Shane Phelps Law, our team of attorneys has over 30 years of combined experience defending clients against a wide range of criminal charges. We have extensive knowledge of Texas laws concerning sexual offenses and a deep understanding of how prosecutors approach these cases, we are well-equipped to build a robust defense tailored to your unique situation. Our founding attorney, Shane Phelps, previously worked as a prosecutor. This gives us invaluable insights into how the other side approaches and builds cases.

Contact us today to schedule a confidential consultation. We can help safeguard your rights and interests in the face of unsulicited sexting or any other criminal accusation. Call our Bryan, Texas, office to schedule a free case review at 979-596-6843 today or contact us online.