In 2017, the 85th Texas Legislature created an offense called Possession or Promotion of Lewd Visual Material Depicting Child. This new crime outlaws possession or promotion of images (whether photographs, drawings, paintings or electronic graphics) of clothed (or unclothed) children (whether they’re yours or not) that “appeal to the prurient interest in sex.”
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The law has serious constitutional problems. The amount of images that this covers is almost unimaginably large. The state might have to imprison every sixteen year old that uses Snapchat, Instagram or Facebook.
This is a truly bizarre law. For starters, it presumes that there is “an interest in sex” that is not prurient. Apparently juries are supposed to decide what interest in sex is prurient and what interest in sex is not prurient. The idea that juries are supposed to look at some sexual fantasy or photograph or video and determine whether it is a “prurient” interest in sex or a (what’s the opposite of prurient? Regular?) “regular” interest in sex is preposterous. The only regular sexual interest is regular sexual interest.
We are also left guessing at how a jury is supposed to determine sex appeal. If you take a photo of your child wearing a swimsuit in a bathtub (or a pool) and someone thinks it is sexual, then you can be arrested for this offense, even if you don’t find it sexual in nature. There is no “objective” standard contained in the law and there is no limitation on who might find an interest sexual or not.
In October 2020, Netflix was indicted for a violation of this offense by a grand jury in Tyler County based on an allegation that the “Cuties” is lewd. I suppose that the grand jury will indict all of the Netflix subscribers across the world for possession of the film. The stupidity is astounding.
What is the current Texas law about Possession or Promotion of Lewd Visual Material Depicting Child?
The current Texas law defines the offense of Possession or Promotion of Lewd Visual Material Depicting Child in Penal Code Section §43.262 as follows:
(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:
(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or scientific value.
This law was created by Section 1 of House Bill 1810 and has been codified at Section 43.262 in the Texas Penal Code. The Possession or Promotion of Lewd Visual Material Depicting Child law took effect September 1, 2017. This new law resembles the federal law of Obscene visual representations of the sexual abuse of children.
What is the penalty for a Possession or Promotion of Lewd Visual Material Depicting Child conviction?
The law is penalized by default as a state jail felony, but it can be enhanced to a third degree felony after a first conviction and a second degree felony after two convictions.
This offense is not currently listed as a “Reportable conviction or adjudication” in Texas Code of Criminal Procedure §62.001(5), so it does not currently require registration as a sex offender.
^1. Texas Penal Code §43.262^2. H.B. 1810, 85th Legislature, at Section 2^3. H.B. 1810, 85th Legislature, at Section 2^4. 18 U.S. Code § 1466A^5. Penal Code Section Sec. 43.262(c), as created by House Bill 1810, 85th Legislature, Section 1, effective September 1, 2017