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Texas’ Improper Photography Law Ruled Unconstitutional by Appeals Court

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There’s a legal battle currently raging in the state of Texas that concerns photography. More specifically, it concerns improper photography — defined as photographing another person without their consent to arouse or gratify the sexual desire of another person — which was illegal until the state’s Fourth Court of Appeals declared the statute prohibiting it unconstitutional.

The constitutionality of the Texas Improper Photography Statute was first brought to the courts in July of 2011, when 50-year-old Ronald Thompson was arrested at Sea World of Texas for taking inappropriate photos of children ages 3 to 11 in their swimsuits.

He was charged with 26 felony counts of violating the Improper Photography Statute, which is usually applied in cases where covert cameras are involved. Thompson hasn’t been tried yet, however, because the statute has been making the appeals rounds — the Fourth Court of Appeals is the first to rule the law unconstitutional.

texasappealscourt

“I was very surprised,” First Assistant District Criminal Attorney Clifford Herberg Jr. told San Antonio’s KSAT. “This has proven to be an important statute in what I could call the digital age, this is the kind of statue that prevents someone from photographing under a woman’s skirt.”

The fight isn’t over yet, however. Although Thompson’s attorney, Don Flanary, was happy with the decision, District Attorney Susan Reed intends to take the case to the Court of Criminal Appeals — the highest court of criminal review in Texas.

(via Topix)


 
  • Dikaiosune01

    As a street photographer, this is bound to cause more animosity between the general public and photographers. I personally have nothing wrong with how the law is stated; but carefully wonders who the burden of proof lies on? Is it the photographer’s responsibility to prove that their images for sexual arousal? Or shouldn’t it be the police who needs to detain and conduct a proper investigation to ascertain if the images are for sexual arousal? I lean toward the latter. As long as police officers are courteous representatives of the law (that”s a big ask though I know) I always cooperate. No need to aggravate police officers more if they aren’t doing anything wrong.

    Now in regards to this case, we know nothing about Ronald Thompson. But photographing young children in swimsuits seems suspicious and warrants further investigation. But that in itself is not enough to accuse him – by that logic Sally Man would be standing right beside Ronald

  • liedoggo

    As a street photographer, you think that documenting children playing in a water park, in bathing suits suspicious? Are you aroused by the adult women you photograph? Perhaps his interest was photographic.

  • http://Flickr.com/inthemist InTheMist

    I’m all for protecting kids, but I don’t know how you prosecute that. Is it a “I know it when I see it” argument?

  • Shane

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  • Dikaiosune01

    I wouldn’t disregard it as a possibility. He could be a pedophile. He could be a photographer documenting the children playing at the park. There is not enough information here, and I haven’t bothered to google Ronald Thompson to see if he has an online website / gallery of his work.

    Another point i wish to re-iterate; (1) I wouldn’t blame parents for inquiring. And as a street photographer, when I get approached and asked about what i’m doing, I try to provide an adequate answer that will satisfy them. (2) The burden of proof should be on the police or investigators to determine if the photos are for ‘sexual arousal’ That is assuming a situation develops to the point where someone is accused of a crime.

    I haven’t been accused of a crime yet. knocks on wood. I suppose my explanations to security guards, police officers, and inquiring strangers has been adequate thus far.

  • Ken Jones

    Wow, I don’t know how that even could have gotten on the books. (Yes, I’m being facetious.)

    However, Googling the incident reveals it appears the “inappropriateness” of Thompson’s photographs were that many of the photos found on the camera were of girls 3 – 11 years of age AND focused on the breast and buttock area. Not your typical “children playing” shots. And this was after he attempted to delete the photographs before the police were able to seize the camera. That kind of plays into the “intent” part of the statute.

    While the statute is unconstitutional (probably), it doesn’t mitigate the fact it appears a pedophile got caught.

  • http://www.tom-waugh.com/ Tom Waugh

    Who actually defines what is classed as ” arousing or gratifying the sexual desire of another person”?
    Sexually arousing to one person could leave others cold.

  • Robert Hudnall

    They’re always invoking the “shooting up a woman’s skirt” thing. To cause sexual arousal covers a lot of territory because what turns on one person may not interest another. Hiding a camera in a restroom or shooting up a woman’s skirt are no-brainers, but taking pictures of children in bathing suits at a water park…that’ll take some steep proving.

  • J.Silvertab

    Crappy Law because who determines what is gratifying ?
    Years ago it was illegal for a Black person to even look at a white woman(was the black man gratifying himself?) ,and photographing her was out of the question and many Blacks people were Lynched,arrested and hung for it,to even think of dating a white woman was an arrestable offense in the 1950,60,s deep south ! wasnt it people!

    So if the Police officer or prosecuter is turned on is that what weights in?
    so if a man takes a picture of Another man and the man is gay does that justify a sexual gratification and who gets to determine that the Police?

    so if a man is Bi sexual and takes a picture of a man and woman doing Yoga does he get arrested for the Pictures of the Lady or of” The Guys only” and how do you know what turns that guy on Man or Woman on or Both???
    Can a gay man get away with that by stating simply that he is gay and not turned on by women? who knows? is that a barrier to prosecution?
    So you see the scenarios are endless in the digital age of technology,
    Of course a pedophile should not be protected at all and i think they are sickos…. but he could get charged with not obtaining a photo/video release of that persons privacy or something like that since it is a minor child or some method where it doesnt stiffle Art work or creativity of the innocent
    we cannot prosecute not even one innocent person ,no innocent person should ever be subject to that law at any expense.

    Yeah in tne case of the Pedophile.. yeah up skirt childrens pics show a weird intentions or thoughts he needs a shrink but are we now prosecuting people for thoughts or what we think they are thinking? Thought police? It is morally wrong i agree but who determines our moral thoughts? the Police?
    protect us all but dont make it a photography thing everyone now has a camera phone find another method or law not so general.protect privacy somehow!
    .

  • Ron Scubadiver

    More recently the Court of Criminal Appeals (the highest court in Texas for criminal matters) ruled that simply taking pictures at a public swimming pool where many children were present in bathing suits did not constitute evidence of criminal activity that would justify stopping the photographer (who was stopped, his camera searched and he was charged with improper photography). As a result the evidence was suppressed and the photographer (who was being creepy) got off.

    The DA handling the case said he believed the court was uncomfortable with the statute. The problem here is while this statute regulates things that should be outlawed, it also can result in an arrest for ordinary photography. Texas needs a law like all the other states have where that which is illegal is clearly listed.

    On November 27th the Court of Criminal Appeals agreed to take the appeal in the Thompson case.

  • Fabian McIntyre

    I find it very disgusting that someone can actually take a picture under our moms, your wife if your married, our sisters, your daughters if you have daughters, our nieces, your fiance if you have a fiance, your girl-friend if you have a girl-friend, our cousins, our friends, and our aunts skirst for arousing or gratifying the sexual desire of them and it’s not againts the law according to First Assistant District Criminal Attorney Clifford Herberg Jr. I wonder what would he do to help get the California Penal Code Section 64(j)(2) adopted into the Texas Penal Code.

    “California Penal Code Section 647(j)(2) PC involves using a concealed device to record another person’s body or undergarments. A defendant would be guilty of this offense where the following elements are present:

    The defendant used a
    Concealed camcorder
    Motion picture camera
    OR any type of photographic camera
    To secretly videotape, film, photograph or record another identifiable person under or through the other person’s clothing for the purpose of viewing the body or undergarments of that other person
    Without the consent or knowledge of the other person
    With the intent of sexual arousal or invasion of privacy
    AND under circumstances in which the other person had a reasonable expectation of privacy.”