Unlawful Disclosure of Intimate Visual Material
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The §21.16 statute
Penal Code §21.16 has multiple offense theories:
(b) Disclosure. A person commits an offense if disclose visual material depicting another person, or another person's genitals or other private body parts, that:
- The other person did not consent to the disclosure, AND
- The visual material was obtained with reasonable expectation of privacy, AND
- The disclosure causes harm to the other person, AND
- The disclosure reveals identity of the other person
State jail felony.
(c) Promotion or threat. Promotion (publishing for commercial purposes) or threatening to disclose: state jail felony.
Civil remedies also available under separate Texas civil statutes.
Common scenarios
Typical cases:
Post-relationship disclosure. Most-prosecuted scenario. Former partner disclosing intimate material from past relationship.
Hacked or unauthorized obtained material. Material obtained through hacking, theft, or deception, then disclosed.
Sextortion threats. Threats to disclose if recipient doesn't pay or perform sexual acts. Often combined with theft by coercion charges (§31.03 + coercion definition).
Commercial promotion. Selling or commercially distributing intimate material without consent. State jail felony level.
Online forum sharing. Posting to revenge porn sites or sharing on social media.
Defense framework
Defenses:
Consent. Where the depicted person consented to disclosure (publicly published material, consensually shared, etc.), the case fails. Consent analysis is fact-specific.
No expectation of privacy. Material obtained in public contexts, or where reasonable expectation of privacy never existed, doesn't qualify.
Lack of harm. The statute requires harm to the depicted person. Where no harm is shown, this element fails.
Identity not revealed. The disclosure must reveal identity. Anonymous postings without identifying information may not qualify.
First Amendment. Some disclosures may have constitutional protection (artistic expression, news reporting on public officials). The line is fact-specific.
Identity of poster. Anonymous posts require establishing defendant as source.
Texas unlawful disclosure of intimate visual material (§ 21.16) — by offense theory
| Conduct | Offense level | Punishment range |
|---|---|---|
| Disclosure of intimate material without consent | State jail felony | 180 days to 2 years state jail + up to $10,000 |
| Promotion — publishing for commercial purposes | State jail felony | 180 days to 2 years state jail + up to $10,000 |
| Threatening to disclose | State jail felony | 180 days to 2 years state jail + up to $10,000 |
| Civil liability (separate from the criminal case) | Civil cause of action | Damages under Civil Practice & Remedies Code § 98B.002 |
| Texas's “revenge porn” law; a base disclosure conviction is not on the standard sex-offender registration list (CCP art. 62.001), though related charges may be. Consent is the central defense. Sources: Texas Penal Code § 21.16; Civil Practice & Remedies Code § 98B.002. | ||
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Frequently Asked Questions
Can I be charged for sharing material that was already public?
Possibly. The statute focuses on disclosure with the other person's lack of consent to that specific disclosure. Material previously made public by the other person typically doesn't support charges. Material obtained from earlier private context, even if subsequently public, may still be covered.
What about screenshots of social media intimate posts?
Material the depicted person posted publicly is generally not covered. Material posted to limited audiences (private accounts, group chats) may be covered if shared more broadly without consent. The reasonable expectation of privacy element is the key factual question.
Is sextortion the same as this offense?
Related but different. Sextortion (threatening to disclose unless paid or coerced) typically combines §21.16 (or threats thereof) with theft by coercion (§31.03 + coercion). The combined exposure is substantial. Federal sextortion statutes may also apply.
Can civil lawsuits be filed for revenge porn?
Yes. Texas Civil Practice & Remedies Code §98B.002 creates civil cause of action for unlawful disclosure of intimate visual material. Damages include actual damages, statutory damages, attorney's fees, and injunctive relief. Civil litigation often proceeds parallel to or instead of criminal prosecution.
Will a conviction require sex offender registration?
Generally no for the base §21.16 offense. The offense is not on the standard registration list under Code of Criminal Procedure ch. 62. However, related offenses (sexual assault, online solicitation) often charged alongside may trigger registration.
References & Statutes
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