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Featured, second from left: Rep. Terry Canales, D-Edinburg, on Thursday, July 9, 2015, during the McAllen Chamber of Commerce’s 84th Legislative Session Wrap-Up Luncheon, held at the DoubleTree Hilton Hotel in McAllen.

Featured, second from left: Rep. Terry Canales, D-Edinburg, on Thursday, July 9, 2015, during the McAllen Chamber of Commerce’s 84th Legislative Session Wrap-Up Luncheon, held at the DoubleTree Hilton Hotel in McAllen.
Photograph By MARK MONTEMAYOR

“Revenge porn”, the name given to a vengeful and widespread trend that involves the unauthorized posting on the Internet of sexually-explicit images without an individual’s permission, is now a crime in Texas, and can result in punishment of up to one year in jail and up to a $4,000 fine, Rep. Terry Canales, D-Edinburg, has announced. The shameless practice, which is typically taken by vindictive former lovers, amends the Civil Practice and Remedies Code and Penal Code to establish the Class A misdemeanor offense of unlawful disclosure or promotion of intimate visual material and to establish a defendant’s civil liability to a person depicted in intimate visual material for damages arising from the material’s unlawful disclosure or promotion. “The reality is there are some people who simply cannot handle rejection in their personal lives, and when things don’t go their way, they lash out by putting very intimate photographs on the Internet in order to humiliate, shame, or traumatize their current or former spouses or significant others,” said Canales. “So they resort to this despicable tactic, which is known as ‘revenge porn’. But now, the long arm of Texas law is able to protect the innocent and punish the guilty.” This past spring, Canales helped pass the measure, Senate Bill 1135 by Sen. Sylvia García, D-Houston, first through the House Committee on Criminal Jurisprudence, of which he is a member, and then through the House of Representatives. SB 1135, which was signed into law on June 17, 2015, by Gov. Greg Abbott, became law on September 1, 2015. “The moment I read what SB 1135 was about, there was no doubt in my mind that I was going to give it my full support, especially as a member of the House Committee on Criminal Jurisprudence, because we had to pass it in order for it to have any chance to become law,” said Canales. “SB 1135 is now the law. I want to help get this message out, especially to victims who may not know that ‘revenge porn’ is a crime, and Texas will not stand for it.” The Houston senator’s SB 1135, which makes Texas one of more than 20 states which have passed laws targeting “revenge porn”, is formally known as the Relationship Privacy Act. In announcing that the law had go into effect on September 1, García explained that “revenge porn” is usually done with the specific intent to gain revenge and harm the depicted person and without the consent of the depicted person. Thus, this practice has been commonly referred to as “revenge pornography.” Victims’ images are commonly posted along with information such as their name, contact information, and links to their social media profiles, she added. To add insult to injury, “revenge porn websites” are further preying on victims by charging fees to remove the sexually explicit images from the Internet, García added. SB 1135 establishes criminal penalties and civil remedies for this reprehensible practice. “Posting a nude or sexually explicit photo of someone on the Internet without their permission is an evil and destructive violation of trust. My hope is that the civil and criminal penalties provided for under the Relationship Privacy Act deter this heinous conduct from ever occurring again in Texas,” García said. “However, should some coward choose to defy all decency in a petty attempt to get revenge, I take some comfort in knowing that the Act gives law enforcement and prosecutors the tools they need to get justice for the victims.” Both Canales and García saved special praise for victims of “revenge porn” for playing the key role to make the law possible. “I would also like to again thank the brave victims of ‘revenge pornography’ that came forward and shared their stories,” the Houston senator emphasized. “This law could not have passed without their courage.” Canales said the law is the latest victory against family violence. “Family violence also involves emotional and psychological torment, and ‘revenge porn’ most certainly can leave long-lasting, even permanent, injuries just like physical violence,” the Edinburg lawmaker said. “For those who think they can use the Internet to inflict such pain, it is you who should be in fear, because Texas is coming to get you.”

••••••

“Revenge porn”, which involves unauthorized posting of intimate images on the Internet in order to traumatize a person, a “despicable tactic” that is now illegal in Texas, says Rep. Canales

By DAVID A. DÍAZ
Legislativemedia@aol.com

“Revenge porn”, the name given to a vengeful and widespread trend that involves the unauthorized posting on the Internet of sexually-explicit images without an individual’s permission, is now a crime in Texas, and can result in punishment of up to one year in jail and up to a $4,000 fine, Rep. Terry Canales, D-Edinburg, has announced.

The shameless practice, which is typically taken by vindictive former lovers, amends the Civil Practice and Remedies Code and Penal Code to establish the Class A misdemeanor offense of unlawful disclosure or promotion of intimate visual material and to establish a defendant’s civil liability to a person depicted in intimate visual material for damages arising from the material’s unlawful disclosure or promotion.

“The reality is there are some people who simply cannot handle rejection in their personal lives, and when things don’t go their way, they lash out by putting very intimate photographs on the Internet in order to humiliate, shame, or traumatize their current or former spouses or significant others,” said Canales. “So they resort to this despicable tactic, which is known as ‘revenge porn’. But now, the long arm of Texas law is able to protect the innocent and punish the guilty.”

This past spring, Canales helped pass the measure, Senate Bill 1135 by Sen. Sylvia García, D-Houston, first through the House Committee on Criminal Jurisprudence, of which he is a member, and then through the House of Representatives.

SB 1135, which was signed into law on June 17, 2015, by Gov. Greg Abbott, became law on September 1, 2015.

“The moment I read what SB 1135 was about, there was no doubt in my mind that I was going to give it my full support, especially as a member of the House Committee on Criminal Jurisprudence, because we had to pass it in order for it to have any chance to become law,” said Canales. “SB 1135 is now the law. I want to help get this message out, especially to victims who may not know that ‘revenge porn’ is a crime, and Texas will not stand for it.”

Canales said he was gratified to see widespread support for SB 1135 when it received a public hearing on March 31, 2015 before the House Committee on Criminal Jurisprudence.

Among the individuals and organizations that support SB 1135 were: Chris Kaiser, Staff Attorney for the Texas Association Against Sexual Assault; Justin Wood, Assistant District Attorney, Harris County District Attorney’s Office; Jennifer Allmon, Association Director, Texas Catholic Conference; Jessica Anderson, Lieutenant, Houston Police Department; Bill Elkin, Executive Director, Houston Police Retired Officers’ Association; Tiana Sanford, Assistant District Attorney, Montgomery County District Attorney; Aaron Setliff, Director of Policy, Texas Council on Family Violence; and Gary Spurger, Lieutenant, Harris County Constable, Precinct 4.

“REVENGE PORN” LAW FORMALLY KNOWN AS “RELATIONSHIP PRIVACY ACT”

The Houston senator’s SB 1135, which makes Texas one of more than 20 states which have passed laws targeting “revenge porn”, is formally known as the Relationship Privacy Act.

In announcing that the law had go into effect on September 1, García explained that “revenge porn” is usually done with the specific intent to gain revenge and harm the depicted person and without the consent of the depicted person. Thus, this practice has been commonly referred to as “revenge pornography.”

Victims’ images are commonly posted along with information such as their name, contact information, and links to their social media profiles, she added.

To add insult to injury, “revenge porn websites” are further preying on victims by charging fees to remove the sexually explicit images from the Internet, García added. SB 1135 establishes criminal penalties and civil remedies for this reprehensible practice.

“Posting a nude or sexually explicit photo of someone on the Internet without their permission is an evil and destructive violation of trust. My hope is that the civil and criminal penalties provided for under the Relationship Privacy Act deter this heinous conduct from ever occurring again in Texas,” García said. “However, should some coward choose to defy all decency in a petty attempt to get revenge, I take some comfort in knowing that the Act gives law enforcement and prosecutors the tools they need to get justice for the victims.”

Both Canales and García saved special praise for victims of “revenge porn” for playing the key role to make the law possible.

“I would also like to again thank the brave victims of ‘revenge pornography’ that came forward and shared their stories,” the Houston senator emphasized. “This law could not have passed without their courage.”

Canales said the law is the latest victory against family violence.

“Family violence also involves emotional and psychological torment, and ‘revenge porn’ most certainly can leave long-lasting, even permanent, injuries just like physical violence,” the Edinburg lawmaker said. “For those who think they can use the Internet to inflict such pain, it is you who should be in fear, because Texas is coming to get you.”

BILL ANALYSIS OF RELATIONSHIP PRIVACY ACT

The House Research Organization, which is the research arm of the Texas House of Representatives, provides details of the Relationship Privacy Act (SB 1135) in this bill analysis:

Current laws provide inadequate deterrence and punishment for these actions. Explicit images can be uploaded to websites where thousands can see them and they can be shared with other sites. Victims can suffer threats, harassment, stalking, and sexual exploitation as well as embarrassment and shame that intrude into their work, school, or personal lives.

SB 1135 created a criminal offense and allow civil lawsuits related to the disclosure or promotion of intimate visual material.

Criminal offense.

SB 1135 creates a new criminal offense for the unlawful disclosure or promotion of intimate visual material.

A person commits an offense if:

• Without consent, an individual intentionally disclosed visual material depicting another with the other person’s intimate parts exposed or engaged in sexual conduct;

• The visual material was obtained or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

• The disclosure of the material caused harm to the depicted person; and

• The disclosure revealed the identity of the depicted person, including through accompanying or subsequent information or material or information or material provided by a third party in response to the disclosure of the visual material.

It would be an offense to intentionally threaten to disclose, without the consent, visual material depicting another with the other’s intimate parts exposed or engaged in sexual conduct and to make such a threat to obtain a benefit in return either for not making the disclosure or in connection with disclosure.

It also would be an offense to promote such material. A person would commit an offense if, knowing the character and content of the visual material, the person promoted the material on a website or other forum that was owned or operated by the person.

It would not be a defense to prosecution that the depicted person created or consented to the creation of the material or voluntarily transmitted the material.

It would be an affirmative defense to prosecution to the disclosure or promotion of material that:

• The disclosure or promotion was made in the course of lawful and common practices of law enforcement or medical treatment, reporting unlawful activity, or a legal proceeding;

• The disclosure or promotion consisted of visual material depicting in a public or commercial setting only a person’s voluntary exposure of their intimate parts or the person engaging in sexual conduct; or

• The actor was an interactive computer service, as defined under federal law, and the disclosure or promotion consisted of visual material provided by another person.

• These offenses would be class A misdemeanors (up to one year in jail and/or a maximum fine of $4,000).

If conduct constituting an offense under this section also constituted an offense under another law, a person could be prosecuted under this section, the other law, or both.

Civil liability.

The bill would make defendants liable to a person depicted in intimate visual material for damages from the disclosure of the material if:

• The defendant disclosed the material without the effective consent of the depicted person;he material was obtained or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private;

• The disclosure of the material caused harm to the depicted person; and

• The disclosure of the material revealed the identity of the depicted person in any manner, including through accompanying or subsequent information or material or material provided by a third party in response to the disclosure of the intimate visual material.

Defendants would be liable for damages arising from the promotion of the material if, knowing the character and content of the material, the defendant promoted intimate visual material on an Internet website or other forum that was owned or operated by the defendant.

A claimant who prevailed would be awarded actual damages, including damages for mental anguish, court costs, and reasonable attorney’s fees. In addition, claimants could recover exemplary damages.

Courts, on the motion of a party, would be able to issue a temporary restraining order or a temporary or permanent injunction to restrain or

SUPPORTERS SAY:

SB 1135 prevents the disclosure or promotion of the material. Courts issuing such orders or injunctions could award the party that brought the motion damages of $1,000 for each violation if the disclosure or promotion was willful or intentional or award $500 for each violation if it was not willful or intentional.

The cause of action created by the law will be cumulative of any other remedy provided by common law or statute.

Courts will have personal jurisdiction over defendants in a suit brought under this law if the defendant resided in Texas, the claimant resided in Texas, the material was stored on a server in Texas, or the material was available to view in Texas. This law requires that these provisions be liberally construed and applied to promote the bill’s underlying purpose to protect persons from and to provide remedies to victims of the disclosure of intimate visual material.

This law does not apply to claims brought against an interactive computer service, as defined in federal law, for disclosure or promotion consisting of intimate visual material provided by another.

This law, which took effect September 1, 2015, applies to material disclosed, promoted, or threatened to be disclosed on or after that date. The bill would apply only to causes of action that accrued on or after the effective date.

Harm is difficult to remedy because removing images from a website rarely prevents continued distribution.

Both civil and criminal avenues are important in combating these actions.

This law addresses this problem with a new offense that was carefully crafted to not be overly broad and to meet all legal and constitutional standards.

This law is not a prohibited content-based restriction on speech but would relate to sexual defamation and would enact permissible provisions.

This law contains several thresholds an action would have to meet to fall under the offense so that common actions would not be included. These would include requiring that the material be disseminated without consent, be obtained or created when a person had a reasonable expectation of privacy, and that the actions caused harm.

The offense includes threatening to disclose material described by the bill to address situations in which a threat of disclosure had been used to blackmail others.

This law establishes certain affirmative defenses to prosecution to ensure it captured only criminal activity and not legitimate law enforcement, medical, legal, or commercial actions. It also would be an affirmative defense to prosecution if the material depicted only voluntary exposure in a public or commercial setting.

This law includes civil penalties as another tool to get at the economic incentive related to these actions. Current causes of action can be inadequate in some of these cases, so this law establishes liability for the unlawful disclosure of certain intimate visual material.

Civil penalties could allow those who profit from the disclosure to be held accountable along with those who make the disclosure. This law includes injunctive relief and damages related to it to give the court the power to enforce temporary restraining orders or temporary or permanent injunctions. These damages would be important to get those inflicting the harm to abide by the court’s order.

••••••

Rep. Terry Canales, D-Edinburg, represents House District 40 in Hidalgo County. HD 4o includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr, San Carlos and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426.

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