Add 43.262 to The List


This is a truly bizarre law. It presumes that there is “an interest in sex” that is not prurient. We are not sure what kind of interest that is. We are also left guessing at who gets to determine whether an image has sex appeal.

What the “prurient interest in sex” means is anyone’s guess. It would also be interesting to learn who the legislature believes should determine whether an image’s artistic value is “serious.”

Some dude on the internet.

Said dude is talking about the new Texas Possession or Promotion of Lewd Visual Material Depicting Child statute, section 43.262 of the Texas Penal Code:

(a) In this section:

(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.

(2) “Visual material” has the meaning assigned by Section 43.26.

(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.

(c) An offense under this section is a state jail felony, except that the offense is:

(1) a felony of the third degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under this section or Section 43.26; and

(2) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under this section or Section 43.26.

(d) It is not a defense to prosecution under this section that the depicted child consented to the creation of the visual material.

Any half-competent lawyer knows that in this statute whether speech has “serious literary, artistic, political, or scientific value” is a question for the jury, as is whether the speech “appeals to the prurient interest in sex.”

If “prurient interest in sex” is redundant, it is not so because all interest in sex is prurient, but rather because all prurient interest is sexual. Prurience is excessiveness or unwholesomeness of an interest (usually—maybe always—in sex). “Sleazy” is a good synonym for “prurient.”

It irritates me when lawyers throw content out for the public that, like this, makes the public stupider.

The statute does raise some interesting free-speech issues, albeit not those that the dude has identified.

Here the Texas Legislature has tried to forbid child erotica that fall short of child pornography —the “lewd exhibition of the … pubic area of an unclothed, partially clothed, or clothed child.” (Lewd exhibition of genitals would be child porn.)

They are trying to forbid speech that is not child pornography and is not obscenity. To get over the Constitutional obstacle, the Legislature has taken part of the Miller test for obscenity and engrafted it onto a description of the speech that they want to forbid.

The statute fails as a child-pornography statute because, as the Legislature intended, it forbids speech that is not child pornography.

It fails as an obscenity statute because it lacks the Miller test’s “patently offensive” element.

And while the State will undoubtedly argue that the speech is patently offensive as a matter of lawMiller itself (and many subsequent cases) made clear that an obscenity statute must leave whether speech is “patently offensive” to a jury.


One response to “Add 43.262 to The List”

  1. So the Coppertone girl on the billboards with the puppy tugging at her bikini bottoms is now considered lewd and lascivious. My, we’ve certainly come a long way since the 1970’s.

    (Disclaimer: If you’re not familiar with said Coppertone girl do not conduct an internet search for the term as you could be charged with a crime under section 43.262 of the Texas Penal Code)

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