Patterico's Pontifications

8/11/2008

This Post is Useless Without Pics

Filed under: Law — DRJ @ 2:36 pm



[Guest post by DRJ]

The Austin American-Statesman has a brief article about a Houston man who was arrested at Lake Travis near Austin because he photographed “without their permission” two topless women as they swam and sunbathed in the lake. The man was hiding behind a tree in a cove and spotted by a Travis County Deputy Sheriff. He initially denied he had a camera but consented to a search that revealed a camera with a telephoto lens containing photos of the women’s genitalia. [EDIT: The description of the photos comes from the arrest affidavit.]

Is it illegal to “improperly photograph” someone without their permission in a public place? I assume it could be if it is for the purpose of sexual deviancy or gratification, but the felony charge simply says “Improper Photo/Visual Recording Without Consent.”

Assuming this location is not private property, should there be an expectation of privacy if you sunbathe topless in a public place?

EDIT: My thanks to NK who provides the relevant Texas statute in his comment.

— DRJ

49 Responses to “This Post is Useless Without Pics”

  1. I don’t believe that this is a crime under Section 21.15 of the Texas Penal Code.

    (I’m learning Texas law with your Texas posts, DRJ. I wonder if I can apply them to CLE credit.)

    nk (e38352)

  2. If you’re obviously not shy about revealing yourself in this public manner to anyone within view, then an expectation of privacy is somewhat incongruous.

    Dmac (874677)

  3. This would make a good case for Judge Judy.

    Vermont Neighbor (a066ed)

  4. I think if I were the judge, I’d have to examine the best evidence, the breasts themselves, to make sure they were the ones captured by this fellow’s camera.

    Ed (841b4a)

  5. Here’s the text of the statute:

    § 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING.
    (a) In this section, “promote” has the meaning assigned by Section
    43.21.
    (b) A person commits an offense if the person:
    (1) photographs or by videotape or other electronic
    means records, broadcasts, or transmits a visual image of another
    at a location that is not a bathroom or private dressing room:
    (A) without the other person’s consent; and
    (B) with intent to arouse or gratify the sexual
    desire of any person;
    (2) photographs or by videotape or other electronic
    means records, broadcasts, or transmits a visual image of another
    at a location that is a bathroom or private dressing room:
    (A) without the other person’s consent; and
    (B) with intent to:
    (i) invade the privacy of the other person;
    or
    (ii) arouse or gratify the sexual desire of
    any person; or
    (3) knowing the character and content of the
    photograph, recording, broadcast, or transmission, promotes a
    photograph, recording, broadcast, or transmission described by
    Subdivision (1) or (2).
    (c) An offense under this section is a state jail felony.
    (d) If conduct that constitutes an offense under this
    section also constitutes an offense under any other law, the actor
    may be prosecuted under this section or the other law.
    (e) For purposes of Subsection (b)(2), a sign or signs
    posted indicating that the person is being photographed or that a
    visual image of the person is being recorded, broadcast, or
    transmitted is not sufficient to establish the person’s consent
    under that subdivision.

    What does Texas have against sexual gratification, anyway? 😉

    nk (e38352)

  6. They’ve been aweful touchy about that subject since Brokeback Mountain…

    Darn homophobe cowboys…

    Scott Jacobs (d3a6ec)

  7. Reading the statute in #5, it appears that photographing mini-skirts, tight T-Shirts, Bikinis, etc. will also land you in jail.

    Perfect Sense (9d1b08)

  8. § 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING.

    a) In this section, “promote” has the meaning assigned by Section 43.21.
    b) A person commits an offense if the person:
    (1) photographs or by videotape or other electronic means visually records another:
    (A) without the other person’s consent; and
    (B) with intent to arouse or gratify the sexual desire of any person; or
    (2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).
    c) An offense under this section is a state jail felony.
    d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

    — Seems to me that if the judge determines that the highlighted clause “B” applies (that clause “A” applies in this case, the way that the story is written, is a given) then it’s a crime. Absent a separate code for “upskirt photos” and the like I can’t see how it wouldn’t apply in this case, unless the argument is that the statute is so generalized that it becomes vague in its applicability. Since it’s written in the form of: (A) and (B), it seems to me that the burden is properly placed on the prosecution to show “intent” and for the judge to base his/her ruling on whether or not “intent” was demonstrated. Providing proof of intent may involve search warrants for both the suspect’s residence and computer.

    — Regarding the article, unless I’m off-kilter “breasts” are not usually considered to be “genitalia”. This has no bearing on the case, but it points up sloppy writing on the part of the paper in question.

    Icy Truth (9779ca)

  9. nk wrote: I don’t believe that this is a crime under Section 21.15 of the Texas Penal Code.

    This is a toughie. The actual language of the statute covers photos taken without the subject’s knowledge as the subject is either in or out of “a bathroom or a private dressing room,” but I think a reasonable person would interpret that to mean images obtained from a public area of persons inside a private area. Otherwise, there would be no reason for dividing the law into two parts — it ALL would be illegal regardless of where the person cultivating the images was situated.

    Probably by the time I finish this post, someone will have disclosed that the public area in question is referred to as “Hippy Hollow Park,” a well-known “clothing optional” shore of the lake. For whatever reason, the officer — “Jeff” something — didn’t include that in his report. I wonder if Jeff was…distracted.

    The question is, is the perception that it is a private place legally binding? Personally, I don’t think so, but I ain’t a lawyuh.

    L.N. Smithee (a0b21b)

  10. Perverts! Racists!

    So, where are the pics?

    G (722480)

  11. My first thought was the cop was doing something creepy when he spied the camera guy. Like gazing..

    Vermont Neighbor (a066ed)

  12. Additional info:

    As I suspected, the affidavit describes the location as 7000 Comanche Trail, the address of Hippie Hollow, a clothing optional park and well-known perv magnet. No doubt this explains the fortuitous presence of the arresting officer.

    capitano (03e5ec)

  13. NK,

    Illinois is probably picky about its CLE credit but you could probably take the Texas Bar at this point.

    DRJ (a5243f)

  14. Dmac wrote: If you’re obviously not shy about revealing yourself in this public manner to anyone within view, then an expectation of privacy is somewhat incongruous.

    B-i-n-g-o. I completely agree with going after the “upskirt” creeps that put spycams in shopping bags and stuff. Naturist communities are well-shrouded, secure areas (not that I have experience). But we’re talking about a public beach.

    It’s a contradiction that is frustrating for guys, because you never really know when a woman wants you to look and when they don’t; “Aren’t I beautiful? NOW STOP LOOKING!”

    L.N. Smithee (a0b21b)

  15. capitano,

    ‘Fortuitous’ for the women but not so great for the suspect.

    DRJ (a5243f)

  16. Does that mean we will see no more than two pictures per week in the Media? They don’t ask for or obtain releases from every one they take photo’s of. I was on a scene (fatal crash) Sunday and saw lots of pictures on the broadcast media. No one in my organization signed a release. Do we have a major lawsuit?

    Scrapiron (c36902)

  17. These women choose to expose themselves. I see no reason to permit them to do something that is too awful to photograph. Either it’s ok to be naked in public, and these women have no expectation of privacy, and therefore it’s ok to photograph them, or both are out.

    It’s not like this was a private place. This is only a cove away from The Oasis restaurant and tons of normal family boating. I think it should be OK to sunbath nude, and it should be OK to take peeping tom photos of people in public places.

    but straight dudes: think twice before visiting this place. use google. You don’t necessarily want to see what is offered here.

    Juan (4cdfb7)

  18. BOOBIES ! Though if this nude beach is like most of the others, there are a lot of man-boobs, banana hammocks, and otherwise such less than appealling sights.

    JD (5f0e11)

  19. I suspect that we are fortunate that we do not links to the pics.

    JD (5f0e11)

  20. Guys are such creeps

    TLove (953364)

  21. We resemble that remark.

    Icy Truth (9779ca)

  22. Of that, there is no doubt, Tlove. Especially a guy with a telephoto lens.

    JD (5f0e11)

  23. Smithee writes in #9:

    “This is a toughie. The actual language of the statute covers photos taken without the subject’s knowledge as the subject is either in or out of “a bathroom or a private dressing room,” but I think a reasonable person would interpret that to mean images obtained from a public area of persons inside a private area. Otherwise, there would be no reason for dividing the law into two parts — it ALL would be illegal regardless of where the person cultivating the images was situated.”

    I think the statute provides in sec. (b)(1) that if the subject is in a public area, a crime is only committed (under the statute) if there was no consent AND there is intent to arouse or satisfy sexual desire. [Here’s the defense: Candid shots of women carousing naked are taken with the intent to satisfy ARTISTIC pleasure.] Per sec. (b)(2), If the subject is in a bathroom or private dressing room, then the risk of criminal liability is extended to those cases in which there was an intent to invade someone’s privacy. Sec. (b)(1) is preposterous. Sec. (b)(2) makes sense only to the extent it protects privacy.
    Of course, here there was no privacy.

    Ira (28a423)

  24. If these pictures were taken at Hippy Hollow on Lake Travis, the reason those women were there was simply to lay in the sun in the buff. It has been famous since the 70’s. Family boaters avoid the cove called “Hippy Hollow” for that very reason.

    Hell, these wierdos even have their own web site:

    http://www.hippyhollow.com (come with a warning-Not For Minors)

    retire05 (b0be14)

  25. Sorry:
    http://www.hippiehollow.com

    Again, only for the most broad (in terms of width) minded.

    retire05 (b0be14)

  26. I have mixed feelings. A few years back a friend introduced me to a sports massage therapist who was into the naturalist lifestyle and rented a house on the grounds of a nudist colony. I have my own hangups and couldn’t get past the rule that you yourself entered the complex nude. They are at least concerned with hygiene and people carry a towel to sit on in resturants, etc.

    I don’t mind ogling beautiful bodies, but many of those places are filled with ordinary Americans who can be quite obese or susceptible to gravity. Who wants to see testicles nearing the ground or boobs down to knees?

    Apparently the moonbats in SF and Berkeley have no compunction about being disgustingly nude or even practicing public sex under the eyes of the local police at that one street fest in SF area. check out the scenes from http://www.zombietime.com , especially boobs not bombs. Really great for losing your appetite for food and sex.

    madmax333 (0c6cfc)

  27. madmax — If you’re going to go to Zombietime.com, especially exposing of “San Francisco Values” are the pages about the proudly deviant Folsom Street Fair. If you dare to know what I’m talking about but don’t want to be scarred for life (I’m not being hyperbolic, folks), turn off the images through your browser and just read the captions. You’ll thank me.

    L.N. Smithee (d1de1b)

  28. creepy dude with a telephoto lens *shudder*

    TLove (953364)

  29. #27 One might question why the local auhtorities are down with deviant behavior at Folsom St. Fair. They turn a blind eye to little kids being exposed to things like fellatio right on the streets in broad daylight. And creeps like codepinko can abuse military recruiting centers.

    madmax333 (0c6cfc)

  30. Re: hippiehollow.com

    What a surprise that they put lyrics from John Lennon’s “Imagine” on the site. They think they have their own little Marxist Utopia out there.

    Icy Truth (9779ca)

  31. Not knowing all the laws involved with that specific site, I would think that arrest was improper. According to what I’ve read on the subject, there has to be a specific prohibition to the taking of pictures in a given public location in order to make it illegal to take them with the exceptions of dressing rooms, restrooms, medical facilities, and inside their homes.

    An interesting look at photographer’s rights can be found at the following link.
    http://www.krages.com/ThePhotographersRight.pdf

    If Mr. Krages is right, it would mean that the owner of the property would have to have posted that it is illegal to take photographs on the property. If the property is not so posted I would think that the defendant can win in court. The problem with that is the cost involved because it might be necessary to appeal the initial decision.

    In practice there are many laws which are unconstitutional, but continue to be enforced because of the cost involved in appealing them. You have to have a lot of money to be willing to challenge a law where the fine might be a few hundred dollars and most of us don’t have the funds necessary to mount a challenge to a law. A good number of police arrests and citations depend upon that fact. Even for a simple traffic infraction the costs of fighting it often run many times the cost of the fine and also take time from work. The last time I took on the law over a traffic citation was in the early seventies and it was over a traffic ticket with a fine of $57 and cost me $350 to beat it. To top it off, I had to fight two more citations issued in the same jurisdiction–after I beat the first one–before it was over and the judge told the State Police that if they wrote me another citation similar to the last two he would hold them in contempt. So the cost to beat one traffic ticket with a $57 fine cost me $1050 dollars in lawyer fees and three days of missed work before it was over. And believe me, when you make an officer look foolish in court, his friends love to write you tickets whether you break the law or not. While I’m confident that there are jurisdictions where that is not true, it was true for me.

    Fritz (89790e)

  32. Hippie Hollow Park is a Travis County park and thus it is probably public property. One of the rules posted at the website provides:

    “Please respect the privacy of other visitors and ask permission before taking photographs.”

    It’s likely the rules are also posted at the Park itself.

    DRJ (a5243f)

  33. #30, I don’t know about a Marxist utopia at Hippie Hollow, but I can promise you, none of the people who hang out there are conservatives.

    #32, no, there are no other signs saying to ask permission before taking pictures in any other Texas or Austin parks.

    retire05 (b0be14)

  34. If DRJ is right about the signs forbidding photos w/o permission, and of course DRJ is right, then I was wrong.

    These women had an expectation of privacy from photos, and while they were in public, they were not subjecting themselves to peeping tom photos.

    Further, whether this pervo took the pictures to arouse himself is a jury question. If any Texas jury would be kind enough to say it wasn’t sexual, that jury is in Travis county, but I think it’s a worthy case to make (and a deal should be made for a small fine or deferred adjudication).

    It’s not OK to photograph people who have a good reason to expect they won’t be, such as when the government forbids it.

    RetireO5, I happened upon this place on accident when I was boating with some friends. It was more of a surprise and a laugh than a tragedy, but I can easily see how someone would be aloof enough that their kids would happen upon evil nakedness.

    Juan (4cdfb7)

  35. retire05, this isn’t like other Texas or Austin parks. So there’s no reason to say they have the same photo policy without actually driving out there.

    Juan (4cdfb7)

  36. I would argue that there is a big difference between requesting you not take pictures without permission and an order forbidding you to do so. Unless there are signs spelling out the policy on taking pictures, and that policy expressly forbids it without prior permission, I still think that the arrest is wrong. While I think the person who took the pictures is a creep, the last time I checked it is not against the law to be a creep. Unfortunately, I suspect that he will be convicted because of the perception he is a creep and not because there are actual constitutional laws against what he is charged with. As I pointed out in my earlier comment, you have to have money and be willing to spend what is necessary to ensure that you are not convicted of charges that may not be legal or constitutional.

    Fritz (96e39f)

  37. Well Fritz, I generally agree that there should not be laws against taking pictures, but what do you think about taking pictures in dressing rooms and showers? Say the shower is in a public place like a prison?

    It seems like privacy is contextual. These women saw that sign and that was probably part of their decision when they disrobed. It’s not the same thing as if there was no sign and they disrobed, where they knew their location was unrestricted.

    Legally, it’s clear to me that this guy is a criminal, since the photos were sexual. Yep, I know it. Can it be proven? That’s another matter. should he be in trouble? I think yes, since the people should be able to rely on basic privacy of their nudity at times when it’s clear it’s against the rules to record it. I guess what I’m saying is that I fail to see any difference between these women and women in any other setting where pictures are prohibited, such as a bathroom.

    Of course, I never seem to be in the majority on these types of issues.

    Juan (4cdfb7)

  38. nk or DRJ – In the statute under (1):

    (A) without the other person’s consent; and
    (B) with intent to arouse or gratify the sexual
    desire of any person;

    How important is that and?

    Apogee (366e8b)

  39. They have to prove both of those elements Apogee. If they cannot prove both (if the jury has a reason to doubt either of them after evidence is presented is how I define it), then the defendant is not guilty.

    Juan (4cdfb7)

  40. What Juan said. The “and” is everything.

    One caveat: Texas criminal law seems to me to be like Illinois’s in a lot of respects. So the jury could be allowed to draw a permissible inference of “intent to arouse or gratify the sexual desire of any person” from the circumstantial evidence without direct evidence.

    nk (e38352)

  41. Didn’t I say that way back in #8?

    Icy Truth (f4a81f)

  42. Juan, in my first comment (comment #31) I covered the taking of pictures in dressing rooms and showers and that such conduct is generally considered against the law. Were that what had happened I would be more than happy to see the defendant charged and convicted if sufficient evidence is presented to convict him.

    Having said that, it is generally recognized that it is permissible to take pictures in public places unless there are specific prohibitions against it and in this case no one has offered any proof that such prohibitions exist. A request is not a prohibition because it is only a request. Making it as a request implies that the party being requested to do something is free to refuse to do so.

    From a personal standpoint I would have no problem with–and in fact would be in favor of the area being posted that the taking of pictures is prohibited unless the party taking the pictures has a signed consent from the party being photographed. It is well within the power of the Travis County Park’s Department to designate the area as such, but unless they have done so the police have no right to arrest and charge someone with something that is not illegal.

    Do not infer that I favor such behavior or that I am trying to defend the defendant. My only goal is to see that the law is properly followed. That means that even though I may personally find certain acts deplorable, unless it is against the law it is not a crime. My problem with this case is that it took place in a public area where there is no right to expect privacy, and without seeing the pictures there is no way to judge it. Also, without rulings from appeals courts the law nk cited may not be constitutional in light of previous rulings with regards to photographers’ rights.

    One last thing Juan. Unless you have seen the pictures you are depending on another person’s opinion that they are sexual. While I suspect that I would agree with that assessment, I am unwilling to state as a fact that they are sexual without seeing them, and unless you are willing to blindly accept anything another person says, neither should you. And I certainly would not blindly accept everything a police officer says because I have personally encountered several instances when an officer was less than truthful and can cite numerous instances when they have lied to obtain search warrants such as the Kathrine Johnson case in Atlanta.

    Fritz (49662d)

  43. Don’t worry Fritz, I understand what you’re saying. It’s a complicated issue, and like I said way above, I never seem to have the popular or politically likely view of these kinds of issues.

    And of course, I’m making an assumption that these pictures are sexual. I’m not playing juror here, and if I were I’d want some evidence, but I am pretty damn sure these guy was hiding in the bushes for the sexual thrill of voyeurism. I don’t think the officer’s opinion is particularly relevant to this (and I agree that you have to be careful with how much you trust the police… though I try to give them a bit of slack).

    Intent is ultimately impossible to prove absolutely, so we have to guess. I’m probably not even going to be a hero for the defendant in these sorts of cases, and maybe that’s not a great reflection on my character, but I would honestly have a hard time not demanding evidence to disprove these were sexual (such as an art portfolio).

    Juan (4cdfb7)

  44. even=ever

    Juan (4cdfb7)

  45. if I were I’d want some evidence, but I am pretty damn sure these guy was hiding in the bushes for the sexual thrill of voyeurism

    That’s the problem. Unless the officer caught him “red handed”, it would be hard to prove beyond a reasonable doubt. I mean, I know what *I* would have done with them, but that’s me, not him…

    I dunno if I could convict the guy. The state would have an uphill fight to win me over…

    Scott Jacobs (fa5e57)

  46. DRJ – Thanks for not putting up links to the pics.

    JD (75f5c3)

  47. Texas legal experts are divided on this case, in part because it involves a public beach. This quote by Kathy Bergin, who teaches constitutional law at South Texas College of Law, is a good example:

    “The concept of privacy is really diminishing. Technology is making privacy harder to come by,” she said. “The courts are going to have to stipulate where the lines are going to be drawn between First Amendment concerns and privacy interests.”

    DRJ (a5243f)

  48. There might be a First Amendment issue if he wanted the pictures to better support or protest the use of Texas’s public beaches by nudists. Hmmm.

    nk (53f203)

  49. I would support, BTW. 😉

    nk (53f203)


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