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In: Criminal Defense

New Offense: Possession or Promotion of Lewd Material Depicting a Child—HB 1810

Texas legislators fill a gap in the law where visual depictions of a minor may be obscene, but do not rise to the level of pornography.

HB 1810, a new Texas law, is meant to criminalize conduct that would not be considered child pornography, but may still be categorized as possession or promotion of inappropriate visual material depicting a minor. This is a non-registerable, lesser offense that was needed, based on testimony, to address the situation where the material did not include the face or head area of the individual. Additionally, the prosecution must satisfy a high standard by proving that the charged individual intentionally accessed or promoted the lewd material knowing that it showed a minor child at the time the material was created.

The law itself bans access, with an intent to view, or the possession or promotion of obscene visuals sexually depicting a minor child. It explicitly states that the material must appeal to the prurient interest in sex. This may lead to some confusion in the law’s interpretation as it might be difficult to draw a line between material that has sex appeal and material that appeals to the “prurient” interest in sex, which would be encouraging an excessive interest in the sexual material. It is easy to see how this may lead to some interesting case debates in the future.

Additionally, the new law states that the lewd material had no serious literary, artistic, or scientific value. If it did, one would assume that the material would be allowable under the law. Thus, more questions regarding interpretations of this new law arise. It will be interesting to see what lewd material would fall into these exceptions and who would be in charge of deciding what material had something like sufficient “artistic” value to be exempt from punishment.

While this new offense is considered a lesser offense than possession or promotion of child pornography, it still carries severe penalties. It is considered a state jail felony. If an individual was previously convicted of possession or promotion of child pornography, it will be considered a third-degree felony. If the individual was convicted of possession or promotion of child pornography twice in the past, it will be considered a second degree felony. A person convicted of this new offense still faces lengthy jail sentences, large fines, a criminal record, and the stigma this type of crime often carries.

It will be interesting to see how interpretation of this law unfolds over time. Until then, we are left with questions like:

  • What statute should govern consensual exchange of photographs between high school students (“sexting”)?
  • Who is supposed to determine whether an image has sex appeal?
  • Who is in charge of determining whether the material has serious “literary, artistic, political, or scientific value”?

If you are facing criminal charges, you want an attorney with a thorough understanding of criminal law and one that is diligent about any changes or updates in the law. Criminal defense attorney Michael J. Price II knows the importance the state of the law has on his clients. Well versed in criminal law and its new developments, Mike is the attorney to meet if you are facing criminal charges. He provides a no-cost case evaluation where he will let you know if you are eligible to clear your criminal record under the new Texas law.