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posted by Fnord666 on Friday November 24 2017, @09:59PM   Printer-friendly
from the is-everything-bigger-in-Texas? dept.

(Update: The Capitol Police are investigating the release of the photo.)

Texas Congressman Joe Barton has confirmed that an explicit image circulating on social media shows him exposing himself. Barton claims to be a victim of "revenge porn", which was outlawed in Texas in 2015:

Sarah Dodd of Dodd Communications, who is helping Barton respond to the image, confirmed that the image is of him and on Wednesday the Congressman apologized for not using "better judgment" while separated from his wife and in consensual relationships with women. "While separated from my second wife, prior to the divorce, I had sexual relationships with other mature adult women," Barton said in a statement first reported by The Texas Tribune. "Each was consensual. Those relationships have ended. I am sorry I did not use better judgment during those days. I am sorry that I let my constituents down."

[...] Wednesday evening, an unnamed woman came forward to The Washington Post [archive], telling the newspaper that Barton sent her lewd photos, videos and messages when they had two sexual encounters over the course of five years.

In a 2015 phone call, Barton allegedly confronted the woman over her communications with other women, including her decision to share explicit materials he had sent, the Post reported. The woman shared that secretly recorded phone call with the paper and, according to the Post, in that call, he warned her against using the explicit images he had sent her, in a way that would negatively affect his career -- vowing that he would go to the Capitol Hill police over her actions. The woman told the Post she took that phone call as a threat, and she never had any intention to use the materials to retaliate against Barton.

Barton, in a statement released through a spokesman, says it was to stop her from publicly releasing the images as "revenge porn." Revenge porn -- when sexually explicit images are posted online without consent -- was outlawed in Texas in 2015.

Revenge porn is defined by Texas as "visual material" depicting a person's exposed "intimate parts" or engagement in sexual activity, distributed without a person's consent and causing them "harm", and created under circumstances in which the person had a reasonable expectation of privacy. The depicted person's identity must also be revealed for the defendant to be held liable, but the bar for this is low and includes any information provided by a third party in response to the disclosure of the material.

The city of Washington D.C. also has a revenge porn law. In April, a man was convicted of five misdemeanor counts under the Criminalization of Non-Consensual Pornography Act of 2014. The crime rises to a felony if more than five people viewed the image/video.

The image of Rep. Barton was censored by the Twitter user (⚠ Warning ⚠: contains the image), which may cause it to not be considered revenge porn under the Texas law. The user reportedly claims to also have videos of Barton masturbating.

Here is a guide to revenge porn laws in other states.

Related: MPAA Opposes Minnesota "Revenge Porn" Draft Legislation
Facebook to Fight Revenge Porn by Letting Potential Victims Upload Nudes in Advance


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  • (Score: 4, Interesting) by takyon on Friday November 24 2017, @11:12PM (10 children)

    by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Friday November 24 2017, @11:12PM (#601174) Journal

    I'm going to go by Texas law for now although I don't know which state's (or D.C.) laws are going to apply here ultimately.

    "Intimate visual material" means visual material that depicts a person: (A) with the person’s intimate parts exposed; or (B) engaged in sexual conduct.

    The image doesn't show his "intimate parts". They were colored out by the person who initially released the image. It doesn't show any sexual conduct either.

    That alone could invalidate his status as a victim of revenge porn (in the eyes of the law).

    As for this scenario:

    If that's the case, then things get even murkier -- his expectation of privacy largely goes out the window if this image is evidence of his own criminal action. Its still 'revenge porn'... but its also 'evidence of a crime he perpetrated'.

    I don't think it would be hard to argue that an unsolicited nude photo sent over the mobile surveillance networks carries any expectation of privacy. The Texas law requires that "the intimate visual material was obtained by the defendant or created under circumstances in which the depicted person had a reasonable expectation that the material would remain private".

    Finally, the revenge porn law itself could end up getting struck down as unconstitutional.

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  • (Score: 2) by vux984 on Saturday November 25 2017, @02:34AM (8 children)

    by vux984 (5045) on Saturday November 25 2017, @02:34AM (#601229)

    "The image doesn't show his "intimate parts". They were colored out by the person who initially released the image."

    That depends on how we interpret exposed. There were clearly exposed in the original image and then censored. Is that still an image in which they were exposed? I hear what you are saying; I think a court could go either way.

    "I don't think it would be hard to argue that an unsolicited nude photo sent over the mobile surveillance networks carries any expectation of privacy."

    I think you could argue the other side just as easily. Phone calls are generally treated as private by the law. I have no idea about something sent via SMS/MMS or maybe it was instagram or something...

    "Finally, the revenge porn law itself could end up getting struck down as unconstitutional."

    Maybe.

    • (Score: 2) by takyon on Saturday November 25 2017, @05:13AM (3 children)

      by takyon (881) <reversethis-{gro ... s} {ta} {noykat}> on Saturday November 25 2017, @05:13AM (#601257) Journal

      Is that still an image in which they were exposed? I hear what you are saying; I think a court could go either way.

      I don't see such ambiguity. There are no intimate parts in the image. Just as there would not be if the image was cropped to show only the top 50%. For all we know he could have a sock on it.

      I found this criticism while researching the story:

      http://blog.bennettandbennett.com/2015/07/2015-61-unlawful-disclosure-or-promotion-of-intimate-visual-material/ [bennettandbennett.com]

      Texas’s new revenge-porn statute, Texas Penal Code Section 21.16, is effective 9/1/2015. It’s unconstitutional (content-based restriction on speech, and no recognized exception applies), but it’s “only” a class A misdemeanor, so defendants will be less motivated to take the time and spend the money to hire me to fight it, and lawyers taking their cases will be less motivated to seek my help

      Most revenge porn laws have existed for less than 2-3 years. There's a lot of room for the Supreme Court to take a look at this issue. Not all cases make it that far; it takes the right combination of circumstances. A case involving a Congressman is very high-profile, has different circumstances (Barton is a public figure, and he is accused of harassment), and could attract funding for lawyers on both sides to take it all the way up. I don't think Barton even needs to be involved with the case much.

      Reasons to think this case will not go that far: Barton has already accomplished his goal of defending his conduct. Charging someone with revenge porn will only waste time and money and cause further embarrassment. It already looks like he won't run for reelection. Prosecutors may be unwilling to go after the individual unless Barton agrees to testify. And a censored image doesn't seem to satisfy various definitions of revenge porn.

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      • (Score: 2) by vux984 on Saturday November 25 2017, @05:59AM

        by vux984 (5045) on Saturday November 25 2017, @05:59AM (#601270)

        "I don't see such ambiguity. There are no intimate parts in the image. Just as there would not be if the image was cropped to show only the top 50%."

        I see a distinction between a cropped image and a censored one. The latter is quite a bit more suggestive.

        "For all we know he could have a sock on it."

        Here you raise the point that a censored image of a picture that showed ones "intimate areas" could be indistinguishable from a a censored image of a picture that didn't. (e.g. a clever censor of a bikini etc could appear to be nude than the original). True.

        This gets into an area that isn't really well defined -- and there are other scenarios. What if I photoshop someone elses 'intimate areas' into the photo, and obscure the subjects actual genitals. Strictly speaking that doesn't show the victims genitals. It shows the victims face and body and someone elses genitals. I think this clearly would be in violation of the spirit, if not the letter of the law.

        I think that I generally agree with you that the law as written would clearly exclude the photo of Barton. I could also still see a judge ruling either way; although I tend to agree with your position here. But i also expect that if the photo got excluded texas would amend the law to ensure it would be included in a future case. I can't this loophole surviving long if revenge porn sites exploited it.

      • (Score: 2, Funny) by Anonymous Coward on Saturday November 25 2017, @02:01PM (1 child)

        by Anonymous Coward on Saturday November 25 2017, @02:01PM (#601374)

        Texas’s new revenge-porn statute, Texas Penile Code Section 21.16, ...

        FTFY

    • (Score: 3, Interesting) by maxwell demon on Saturday November 25 2017, @07:42AM (3 children)

      by maxwell demon (1608) on Saturday November 25 2017, @07:42AM (#601293) Journal

      What is you take an image with intimate parts exposed, crop it to just depicting the head (so you couldn't even tell that it was from an image with exposed intimate parts), and then publish the cropped image? Before cropping, the image clearly did have the intimate parts exposed, right?

      What if instead you crop to an old clock that happened to be in the background of that image, and which you considered interesting? Should publishing that also be considered revenge porn, as the intimate parts of some person were exposed in the original image?

      --
      The Tao of math: The numbers you can count are not the real numbers.
      • (Score: 2) by vux984 on Saturday November 25 2017, @07:53AM (2 children)

        by vux984 (5045) on Saturday November 25 2017, @07:53AM (#601301)

        This was kind of delved into in the other subthread; check it out. For what its worth, I think cropping is different from blocking out content. The latter is much more suggestive that something has been 'blocked' out, but I take your point.

        • (Score: 2) by maxwell demon on Saturday November 25 2017, @08:16AM (1 child)

          by maxwell demon (1608) on Saturday November 25 2017, @08:16AM (#601312) Journal

          What if you take a cropped image, but paint over it an arrow with the text "down there are the intimate parts"? That's certainly suggestive; should it also be considered revenge porn?

          --
          The Tao of math: The numbers you can count are not the real numbers.
          • (Score: 2) by vux984 on Saturday November 25 2017, @05:06PM

            by vux984 (5045) on Saturday November 25 2017, @05:06PM (#601428)

            I think this starts to deviate from the image properties itself towards the intent of the person posting them, and the context under which it was posted.

            I mean, what if you take just headshots and bikini shots and post them along with a few paragraphs of 'erotic story' about the person, to a site called 'humiliate your ex'. Isn't that revenge porn? I'd say so, even if this law wouldn't recognize it as such.

            Should it be legal to do that to someone without their consent... ? I can't really think of a good reason for society to protect people victimizing their exes in this way.

  • (Score: 2) by captain normal on Saturday November 25 2017, @04:43AM

    by captain normal (2205) on Saturday November 25 2017, @04:43AM (#601248)

    Why do I think of Dylan's song "Absolutely Sweet Marie" and the lyric "But to live outside the law, you must be honest" ?

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