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Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.

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Statutory Rape – Everyone Loses

Statutory rape laws are supposed to protect underage girls from predatory men. Ironically, statutory rape puts all the focus on the men. If society punishes men for engaging in sex with minors, then there won’t be underage pregnancies. From the state’s point of view, it makes complete sense. If only it were that simple.

statutory rapeStatistics appear to bolster the idea that statutory rape discourages adolescent pregnancy. In 2012, the teen birth rate in the United States was 29% of all births in the country. This is a drop from the 1990s, when the teen birth rate was 60% of all births. But what about the 29% of single mothers—girls under the age of 18—who do get pregnant? Abortion is permitted in some states, but abortion is controversial at best.

If a teenage girl does give birth, society wants to punish the father. But here’s the catch 22. If we send the father to jail for statutory rape, then he won’t be able to make money to pay for child support. While trying to protect teenage girls in general, statutory rape laws harm young mothers and their infants.

It is really difficult for a man to make money for his child if he is in jail for creating that child. Even when the father gets out of jail, he might be considered a sex offender. Registered sex offenders aren’t popular with employers, landlords, or the public in general.

This means that the adolescent mother is stuck raising her son or daughter on her own. In the modern United States, a single income household can’t support a child—especially if the single income had to drop out of high school to have the child. Chances are the child will grow up to be part of the same cycle that their parents found themselves in.

Is There An Alternative?

First, statutory rape laws aren’t going anywhere. Statistics support the idea that they keep teenage pregnancy down. Even without statistical support, too many voters would be worried about child molesters for statutory rape laws to be abandoned.

The question is whether men convicted of statutory rape should be able to share custody of their children. The way I phrased that question probably lends itself to a certain answer (“Yes they should!”). However, the truth of the matter is that this type of case is best handled on a case by case basis. Obviously, child molesters who are willing to lure young girls to bed might do the same to their daughters. On the other hand, if the father is a twenty-something year old who is just in over his head, society might want to set aside its own judgments for the best interests of the child.

Statutory rape often looks like it’s designed to make society feel better about the sexual nature of adolescence, even though that comfort comes at the expense of infants who need a mother and a father. The father might be naive, but a naïve father is better than no father.

Police Detain Actress for Prostitution after She’s Seen Kissing Her Husband

When a police officer walks up to you and asks for identification, do you have to present it? On one hand, doing as requested could save you a lot of headaches and hassle. On the other hand, if law enforcement stops every other person, we might begin to wonder if the police aren’t just abusing the power. Danièle Watt’s story provides an interesting example of the latter.

daniele wattOn September 11, Danièle posted on Facebook that she had been detained and handcuffed in North Hollywood because she had been seen kissing her husband, Brian Lucas, in public. Danièle and Brian suspect that someone had reported them to the police because the interracial couple looked like a prostitute and client. When the police arrived, Daniele was on her cell phone with her father. When the officers asked for ID, Brian presented his ID but Danièle refused.

The officers forcibly handcuffed Daniele, who cut her wrist during the commotion. The police officers held Danièle in the back of the squad car until they realized Danièle had starred in the movie Django Unchained.

Do You Have to Present Police with Identification?

Can the police randomly ask people for identification? Like most legal questions, this depends on the situation. If the police stop a driver or an airline passenger, the police have the right to ask for identification. Since the police have the right to ask for a valid license when they pull over a vehicle, they also have the right to ask for proper identification at the same time. Airline passengers are a larger stretch, but courts have ruled that safety concerns (especially after 9/11) give officers the right to stop passengers for identification. Since neither driving nor flying are rights, there is less legal protection that people can rely on.

Wait, you might say, Daniele wasn’t driving or flying. She was just standing around in public when the police stopped her. Well, Daniele had every right to refuse the police request for identification. If a person isn’t engaged in a licensed activity and/or interstate travel, fourth amendment protections against unreasonable searches are stronger. In other words, police cannot search a person without a warrant or reasonable suspicion.

Since Daniele didn’t have an outstanding warrant in her name, the only way the police could demand rather than request identification was if they had a reasonable suspicion that she was doing something illegal. Currently the police department is denying the incident ever happened, despite photos to the contrary. For argument’s sake, let’s assume the police will argue (and they probably will) that they had a reasonable suspicion: they thought Danièle was a prostitute.

This is where the true value of forcing police to prove they had a reasonable suspicion comes to light. Is it reasonable to assume that a woman is a prostitute because she’s kissing a man in public? Of course not. There are plenty of alternative explanations, like the fact the “prostitute” and the man are dating or married. Aside from Danièle and Brian’s appearances, which the police can’t use because then it would be racial profiling, there was nothing distinguishing Danièle and Brian from every other couple walking the streets of LA County.

Some people might say that Daniele could have avoided this entire incident if she had merely given the police her identification when requested. The problem is that unless the police have a reason to demand identification, the police have no authority to compel that information and Daniele had every right to her privacy. The burden was not on Daniele to obey. The burden was on the police to establish that they had reasonable suspicion, which they clearly could not.

There is one thing Daniele could have done to confirm whether the police suspected she was doing something illegal. If anyone is ever stopped by police, they can always ask if they can leave. If the police say yes, then by all means walk away. If, however, the police say no and demand your identification, then you should probably present ID. They might not be able to prove their suspicion right then and there, but you can contest the charges in front of a judge and have the “suspicion” thrown out.

Does Double Jeopardy Apply to Ray Rice?

Earlier this month, Baltimore Raven’s running back Ray Rice was accused of knocking out his fiancé inside a casino elevator after partial footage of the couple was caught on the casino cameras. The former running back pleaded not guilty to assault charges that was filed against him by New Jersey prosecutors and also applied for New Jersey’s pretrial intervention program, which offered him no jail time since he had no prior criminal record. The pretrial intervention program also offers first time offenders to have the charges that were filed against them be dismissed if they complete the program and meet certain conditions.

ray riceAfter Ray Rice agreed to participate in the pretrial intervention program, New Jersey prosecutors agreed to dismiss the assault charges that were filed against him if he completes the year long, supervised rehabilitation program. However, the prosecutors made this dismissal prior to the new footage that was made public on September 8, 2014.

The new video released by TMZ shows the NFL running back punching his fiancé in the head against a rail, which results in her becoming unconscious. When prosecutors first agreed to dismiss the charges, the only video evidence that they had seen was Ray Rice dragging his fiancé out of the elevator.

The question is whether the prosecutors can reinforce a new case against Ray Rice and retract their earlier dismissal since the new video shows clear cut evidence of domestic violence. Alternatively, would double jeopardy apply? Double jeopardy protects defendants from being charged for the same offense after there already has been a conviction or acquittal.

Since Ray Rice’s charges were dismissed as a part of the first offender program, the state cannot retry him or change his sentence. The NFL however decided to modify his punishment of a two-game suspension to an indefinite suspension after the video of the incident inside the elevator has emerged.

Commentators have argued that since the NFL made their decision on Rice’s punishment, they cannot retract it because it will be a violation of the double jeopardy laws. However, the NFL has its own system and does not have to follow the court system when making decisions. If there is no double jeopardy clause in the NFL’s collective bargaining agreement, the NFL as an employer can modify Ray Rice’s suspension to anything they want.

It is difficult to say what would happen next for Ray Rice, but Ray Rice’s charges for domestic violent and assault has been dismissed and will likely stay dismissed.

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Is Fantasy Football Illegal?

As football season gets underway, so do many “fantasy” leagues. Fantasy leagues allow average, everyday fans to undertake the role of owner and general manager as they draft a team, select a roster, and watch the chaos ensue on game day. As millions of virtual managers watch their virtual team hit the field, specifically those who have paid money or bet on their team, chances are very few stop to ask an important question: Is this legal?

fantasy footballIt may be that most assume it is, or that they are not playing for money. However, if money is involved, this question is vital.

The Unlawful Internet Gambling Enforcement Act of 2006 is legislation that greatly diminished the prevalence of online gambling. However, it also carved out an exception for fantasy sports, provided they meet three requirements:

  1. Prize value is not determined by the number of participants or the value of fees
  2. Winning reflects skill of participants and their knowledge of real-world statistics
  3. Winning is not based on the final score of a real-world game, or the single game performance of a single real-world athlete or team.

Based on these criteria, many traditional fantasy leagues are perfectly legal under federal law.

However, as the popularity of these leagues grows, the variety and type of games also grows: where there are daily, by game payouts, or pay-to-enter “survivor pools” are concerned, the exception laid out above slowly disappears, leaving no federal protection from illegal gambling charges. In fact, any game that is not structured to meet these three requirements may in fact be violating several federal laws.

Moreover, even where fantasy football is legal under federal law, it still faces state review.

Curiously, and unnervingly, while the federal government has, subject to the definition above, deemed fantasy sports games of skill, many states define them as games as “chance.” Moreover, in some states, even if the fantasy football is acknowledged as predominantly a game of skill, it may nonetheless still be illegal if it involves any element of chance.

Even more frustrating are states where fantasy sports have not received much attention at all. For instance, in 1991, Florida’s Attorney General issued an advisory opinion (which means it has little legal authority, but is nonetheless indicative of how the state may treat something) questioning the legality of fantasy sports. Under state law, unless the fantasy sport is a game of “chance” (which would ironically make it illegal under federal law), it is a misdemeanor to wager money on the game. Fortunately, to date, Florida has yet to take any legal action against fantasy leagues or their participants. However, that may cold comfort for those who will continue to play under a constant reminder that what they are doing may one day be taken out of the grey area and deemed to be illegal.

Florida does not stand alone in opposing fantasy sports on the books. Recently, the Kansas Gaming & Racing Commission updated their website, indicating that many types of fantasy sports are most likely illegal. This update may add the Sunflower State to a shortlist where participants are forbidden from participating in the larger, “for cash” online fantasy leagues. Other states include Arizona, Louisiana, Iowa, Montana, and Washington.

As the season unfolds, participants would be wise to brush up on the laws of their state. After all, educating oneself in the legality of fantasy sports is the best way to avoid a reality check later.