OK, I fess up to being involved in the drafting of this statute. Seemed like a good idea at the time. The thought was that the "intent to gratify" element would take it into constitutional territory. I agree that a teacher sending a kid a book or discussing it could be protected speech, but if the teacher is sending certain passages of 50 Shades of Gray along with other inappropriate messages, seemed like grooming conduct which would support a constitutional prosecution.If Mark Bennett has his way, Kepple will be issuing more such mea culpas in his future. Still glowing in the wake of his victory at the CCA overturning Sec. 33.021(b) of the Texas Penal Code, he offered up this post arguing that "Sections 33.021(c) and (d) combined explicitly criminalize fantasy, forbidding speech—fantasy speech—that is protected by the First Amendment." "You read it here first," he wrote, "Section 33.021(c), combined with Section 33.021(d), is unconstitutional." Bennett concluded with this admonition for his fellow criminal defense lawyers:
I hate to sound unnecessarily arrogant, but there are very few lawyers in Texas whom I would trust to handle these challenges. This is a very specialized area of the law, at the intersection of the First Amendment and criminal law. Most lawyers thought I was crazy to say that 33.021(b) was unconstitutional; they kept pleading those cases even after they knew about the pending appeal in the Texas Court of Criminal Appeals.Probably good advice. And speaking of advice on the intersection of criminal and First Amendment law, on the Texas prosecutors' user forum this week Brazos County prosecutor John Brick solicited some regarding another statute Bennett has argued is unconstitutional - Texas' improper photography statute. He wrote:
If you’re a lawyer, please don’t try this at home. Call me and we’ll do it together.
I need help with this scenario – i.e., is this an Improper Photography (21.15 TPC) case or not:Kleberg County DA John Hubert replied:
Girl 1 has child with guy. Guy starts dating Girl 2. Girl 1 finds a pic of Girl 2 topless on guy’s phone. Girl 1 posts the topless pic on Facebook & Instagram and calls victim bad names. The elements read that a person commits a crime if the person: photographs or by videotape or electronic means, records, broadcasts, or transmits a visual image of another at a location that is a bathroom (it is in this case) A) without the other person’s consent, and B) with intent to invade the privacy of the other person.
Suspect can also be charged if: knowing the character and content of the pic, they promote it.
Q1: do you think the defendant has to be the one who actually photographs or records, or do you think the statute reads that they can simply transmit a visual image?
Q2: do you think Girl 2 waived her privacy claim by sending it to someone in the first place?
Q3: what the heck does “knowing the character and content” mean? Do we have to prove the same elements as the underlying (lack of consent and intent to invade privacy)?
OK, I'll attempt this one..Certainly Mark Bennett does. Indeed, a prosecutor from Groesbeck warned Brick that Bennett's First Amendment tonic may sour Hubert's optimistic argument: "Just keep in mind that the Fourth Court has ruled this statute facially unconstitutional. Coupled with the CCA ruling ... striking down a portion of the online solicitation statue on nearly identical reasoning, I would be cautious here." (See Grits' post from September on the Fourth Court of Appeals' opinion.) The improper photography statute now appears ripe for consideration by the Court of Criminal Appeals since the First Court of Appeals earlier upheld its constitutionality, meaning the law is being interpreted differently in different Texas jurisdictions.
Q1. simply transmitting is enough.
Q2. No. Girl 2 sent this to Guy 1. If Guy 1 shared it, there might be an issue of whether G2 waived or not. However, if Girl 1 is getting the pics from the guy without his knowledge, I think there is a privacy issue. Also, you have to look at the intent...it is with intent to invade another's privacy...
Q3. OK, "knowing character and content" may be a little more squishy, but I think that a picture of a person in a bathroom with clothes on but doesn't see a person in the bathtub in the background who is showing some skin might be an example of NOT knowing character and content...... but that would be a question for the jury.
Anyone disagree?
Bottom line: Now that Bennett has busted this First Amendment nut open at the CCA, a number of similarly themed statutes criminalizing possession or transmission of sexual content could well fall like pecans in autumn. And our friends at the prosecutors' association may have more fessing up to do.
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29 comments:
So on the one hand you're criticizing the prosecutor's association for working with the legislature to draft legislation (doesn't TCDLA do the same?) on a bill that was likely a LEGISLATIVE priority and which the public most likely supports (except for perverts); but at the same time you link to their PUBLIC forum where the prosecutors have their own healthy debate about statutes that may be questionable or of dubious constitutionality? To use a Latin term of art, Grits, I think your disparaging comments are kind of "chicken shit."
At least I've got the cojones to put my name on my comments, 9:07, why don't you?
Whether or not you're willing to do so, your "on the one hand ... on the other hand" is sorely confusing because the two things don't contradict one another. What does the prosecutors having a public user forum have to do with the Lege passing an unconstitutional bill Kepple drafted for them? I don't see what one has to do with the other. I'm glad the prosecutors have a public user forum. Otherwise we wouldn't know the source of the language the court found unconstitutional on a 9-0 vote. What's your point?
Bennett would make an excellent judge.
So what's your suggestion for making it constitutional--I would assume we can all agree we don't want perverts going after children online.
@8:23, in order for the statute to be constitutional, it must include as an element the intent to commit a (non-speech) crime with the child.
That's not easy to prove in a pre-crime.
You can have a statute that makes it easy to prosecute people who you think might eventually harm children, or you can have a statute that is constitutional. You cannot have both.
@Rob/8:23, according to Judge Cochran there's no need to write a new statute to make it constitutional. The 9-0 opinion clearly said that "everything that Section 33.021(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected." Texas law already criminalizes as much conduct as the constitution allows, according to the court. Short of secession, there's nothing more you can do via criminal law.
Is there not enough actual criminal activity (as opposed to embarassing, annoying or titillating activities) to keep these prosecutors and ass-clown legislators busy?
BTW: I don't want to live in a state or nation in which folks like Anonymous 9:07 a.m. get to determine who's a pervert and who's not.
Which one is @Rob?
I've always thought this type of charge was unconstutional to begin with. It's already been all the way to the US Supreme Court.
Of course then it was cops conducting drug arrests and not having REAL drugs present. They couldn't conduct a drug sting and give the mark a bag of flour or sugar and then charge them with buying drugs. It's the same thing. You got some govt fucktard 60 year old cop acting as a 14 year old on a ADULT forum and when someone plays along they charge them with this. Of course it's an illegal charge!
Perfect example was that retarded show "to catch a predator"
they sandbagged 100's 99% where never charged let alone convicted.
Of course the real killer was the fact that out of all those 100's less than 1% was a registred sex offender. The so-called evil they were supposedly trying to catch!
This type of shit is ENTRAPMENT plain and simple and the USSC has ruled that is ILLEGAL.
I do think Girl 2 waived her privacy claim by sending it to someone. After all, if placing a call through a company waives your right in you phone company record, if writing a check drawn on a bank waives your right regarding the bank's record of the check, and as placing something in the trash waives (society's willingness to recognize) your right to privacy in what you have thrown away, it seems that sending another person a photo of yourself, absent assertion of a contract or copyright limitation, is a waiver of privacy with respect to that photograph, since there is no limitation on the recipient's right to forward to third persons what you have sent him in the first place.
Go Bennett!
@10:11, Rob Kepple who fessed up to helping author the statute is the only person who seems concerned (on their user forum) with finding new language to replace what the court struck down. Since anon 8:23 expressed a similar concern, I assume that was probably Mr. Kepple, or one of his fellow travelers.
I consider this blog as a critical way of channeling facts about our judicial system and the hypacrits who endorse and hide themselves behind them. They wear a mask of a politician and law abiding individual. They are not leaders; they are s_ _ _ a_ _ _. I would like to do back ground checks on all of them. Let he who has not sinned cast the first stone. Anonymous messages on here have no value to the real and sincere Christians who know how to repent.
This answers my question about going to law school. Apparently there is a need.
What if any affect does this ruling have on a situation like this? http://www.news-journal.com/news/police/tatum-teacher-put-on-leave-accused-of-inappropriate-relationship-with/article_a73f9e86-43b2-11e3-8c99-001a4bcf887a.html
No way to tell without more detail, 6:22. See Mark Bennett's comment above and the line I quoted from Cathy Cochran's opinion - IANAL but as I understand it they can still charge her if there's evidence of intent to commit a crime. And the school may fire her even if she's not charged. Just because an act is not criminal doesn't mean her employers can't hold her responsible.
rodsmith, To Catch a Predator was responsible for at least one good thing: http://www.nbcnews.com/id/15592444/
not sure how you figure that 8:42 since he was never legally charged or convicted. Under our Constitution legally he died INNOCENT! So legaly they managed to hound an innocent man to death!
dont' belive me. Look at the enrom mess. The head man died after his convictiion but before his sentence. It was all tossed. Now the wife is taking the govt to court to get back all the money! since legally he is considered innocent! Yes i know that is retarded. But that is the law here. Don't like it. Leave!
Like i siad those idiots did more harm then good. Since they contaminated 1000's of cases the state had no choice but to drop long before they knew if there was an actual crime.
Actually, there were dozens and dozens of convictions and prison sentences: http://en.wikipedia.org/wiki/To_Catch_a_Predator
And the cop from Alabama who had shown up with a trunkload of weapons for what he thought would be a sexual meeting with an underage girl? Well, he's still rotting behind bars: http://offender.fdle.state.fl.us/offender/flyer.do?personId=70978
LOL you do know any idiot with a keyboard can put anything on a wiki site?
as for the 2nd. so what dumb judges allow bullshit convictions every day!
it was still entrapment!
plus 1 conviction for talking to a old fart on the internet is hardly a predator make!
Just google the names of those who were caught in To Catch a Predator and you'll see that several dozen were sent to prison and many still reside there today. Only a few cases were dropped. The difference between this ruling and those who were caught on TCAP is this ruling only affects those who talked to kids whereas those on TCAP actually showed up at the homes. Huge difference, and still prosecutable...
That's right, 10:33. Entrapment or not, the To Catch a Predator examples all involved somebody physically showing up to make good on an online solicitation - that goes a lot farther than the pure-speech crime the CCA overturned.
Steven A.
I was accused and convicted under Texas penal code 33.021(b) which caused me to loose my career, my reputation, any and all savings my wife and I had, 3 years of my life, and a whole assortment of other things. We have been plunged into a pit of despair, and are below the poverty level with no help available to me from our government. All due to me questioning my 18 year old sons 14 year old girlfriend on Facebook about their sexual relationship.
A 20 minute conversation that destroyed almost everything I held dear. No attempt to meet. No intent to have any type of "relationship". No criminal intent what so ever. Just a father trying to protect his son. That may have been misguided of me, but was I the "pervert" the penal code 33.021(b) made me out to be? Not to mention the polygraphs, counseling, regestrations, all at my expense. I can't get a job better than flipping burgers now.
So what can I do to get my life back?
How do I even begin?
Steve
I was arrested and convicted due to questioning my 18 year old sons 14 year old girlfriend about their sexual relationship.
I lost almost everything. My career, savings, reputation, etc., etc., My wife and I have been plunged into poverty, and I still have all the fines, court costs, treatment, polygraphs, and the list goes on and on and on.
Now what?
I lost 3 years of my life because of a law that is now gone?
What am I supposed to do to get my life back?
Wait, does this statute outlaw any picture taken in a bathroom or does it have to contain nudity? Did they try to outlaw selfies?
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