Generally, you should avoid photographing or videoing someone without their consent. There are times, however, when it is unavoidable. For instance, if you take a group photo at a theme park, you are bound to capture background bystanders.
This brings up an important question. When, exactly, is it illegal to capture someone’s image without their knowledge or consent? The answer all depends on the situation.
For instance, in Texas, it is a crime to take intimate, pornographic images of people without their consent. This crime is called “invasive photography.” The Bexar County District Attorney’s Office takes invasive photography accusations very seriously.
It takes time to build an invasive photography case, and these crimes rarely result in an immediate arrest. Therefore, people often have warrants for invasive photography without knowing it.
What Are the Elements of Invasive Visual Recording?
Texas Penal Code §21.15 makes it illegal to take certain videos and photographs but only under certain conditions.
To qualify as a crime, invasive photography must take place without someone’s consent. Invasive photography can also include the intent to invade someone’s privacy. For instance, any picture taken in a restroom or a changing room is always an offense.
It is also a crime to secretly photograph or video someone’s intimate area, including their clothed or naked genitals, pubic area, or anus. (Consensual photography of this nature is not a crime.) This means that “upskirt” pictures are covered by this offense.
Finally, someone cannot photograph or video a female breast, which is defined as the portion of the breast below the top of the areola, or nipple, without explicit consent.
How Can a Lawyer Help if You Are Charged with Invasive Visual Recording?
There are three primary defenses to the charge of Invasive Visual Recording
- The person consented to the photograph or video. Therefore, it is not an offense.
- The accused did not knowingly take a picture of the intimate area. This defense is called a “lack of intent.”
- You can argue that you possess the item but did not create or distribute it. To commit a crime, someone must take the picture, or they must broadcast or transmit the photograph, such as posting it on the internet.
What Should I Do if I Am Accused of Invasive Visual Recording?
Do not consent to a search of your phone without a warrant.
If you have taken pictures in the manner described above, immediately delete the images, and do not transmit them to anyone else.
What Should I Do if I Take a Picture of Someone, and They Called the Police?
You need to hire a lawyer. The rules of criminal procedure prohibit police officers from making arrests unless they have witnessed the crime firsthand. There are only a couple of exceptions to this rule.
The authorities will probably open an investigation and attempt to contact you. Do not make a statement. It can take months or years for police to issue a warrant. In the meantime, you need to hire an attorney to tell your side of the story. Anything you say can and will be used against you.
The Locke Law Group is here to help defend you against invasive photography allegations. For a free consultation, contact our office by calling (210) 361-3113 or filling out our online contact form.