2015.9: Texas HB101 and Arizona HB2515


IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

Ariz. Rev. Stat. § 13-142 (effective 2014).

(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.

Texas HB101.

Almost the same thing, right? There is a distinction: while the Arizona statute criminalizes the publication of an image of another person “in a state of nudity,” the Texas statute requires “sexual conduct,” which includes “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” But lewdness is in the eye of the beholder, and does not differentiate the statutes in a constitutionally significant way.

The Arizona statute is the subject of an ACLU lawsuit, ((If the ACLU bothers to oppose it it must be really bad.)) Here’s the complaint the ACLU filed. With the agreement of the Arizona Attorney General, the U.S. District Judge in that case blocked enforcement of the law. That doesn’t bode well for House Bill 101.


4 responses to “2015.9: Texas HB101 and Arizona HB2515”

  1. Perfect follow-up from my comment yesterday!

    Another non-attorney, laymen question on this:

    Does “sexual conduct” include simulated sexual activities, in a state of partial undress (or more importantly could it be interpreted by a court to include)?

    Along the same topic as yesterday, I am thinking along the lines of websites that aggregate content from around the web, many of which frequently include themed posts of drunk girls in a state of partial undress (no nipples or genitals exposed) either kissing, fondling each other, or more graphic simulated sexual acts.

    I don’t ask because I think that these websites (or the people that originally disclose the photos) /should/ be found as committing crimes, rather it the possibilities of misusing these statutes concerns me, and boy can I see parents of college aged girls lining up to try and have someone prosecuted for snapping a picture at a party of 2 girls in lingerie kissing / simulating sexual acts.

    Please forgive my overlap with revenge porn and improper photography, and my general non-lawyer questions! As always, along with my natural interest in the law world, you have really sparked a lot of thoughts in my mind on these specific topics. Again, glad to see you are back posting a bit more – over the years of reading your blog I have truly enjoyed it, and you have always shown patience with my laymen questions, especially when 99% of your other commenters are actually in the law world!

    • “‘Sexual conduct’ means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”

      “‘Sexual contact’ means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”

      By caselaw, sexual contact can be through clothing.

      I think that answers your question?

      • Sure does, and confirms my worry that revenge porn laws could potentially become a giant dustpan to try and sweep up people for disclosing pictures that may be unpopular, and turning that “unpopular” into “criminal.”

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