IV. UNDERLYING ISSUES

IV. UNDERLYING ISSUES
1. A. *Enforceability of Texas Penal Code Section 21.19 *
  1. 1. Potential Claims of Mistake
  2. 2. Stigma Surrounding Receiving and Reporting Unsolicited Pictures

IV. UNDERLYING ISSUES

A. Enforceability of Texas Penal Code Section 21.19

There are many things to consider when trying to enforce a law such as TPC Section 21.19. There are multiple necessary steps, including: (1) the recipient properly preserving the visual material and proving the person who owned the phone actually sent the illegal material; (2) the recipient did not

²¹³. PENAL CODE § 21.19(b)(2).

²¹⁴. Request, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/request [https://perma.cc/X7UC-BU8B] (defining “request”).

²¹⁵. Senate Committee on State Affairs (Part I), supra note 11 (showing a recording with witness testimony from Senator Joan Huffman among others—the relevant portion starts at the ten-minute mark and discusses the intent of H.B. 2789).

request or expressly consent to receive the material; and (3) making sure the district attorney’s office has the resources to try the case—assuming it exercised its discretion and decided to move forward with prosecution. Two main issues with the overall process of prosecuting under TPC Section 21.19 are the possibility of claims of mistake and breaking past the stigma of receiving and reporting unsolicited sexually explicit photos.

1. Potential Claims of Mistake

During trial, when a piece of evidence is introduced, the proponent usually has to authenticate or properly identify it.²¹⁶ This is normally done by producing “evidence sufficient to support a finding that the item is what the proponent claims it is.”²¹⁷ Some examples of evidence that satisfies that requirement include: testimony of a witness with knowledge,²¹⁸ distinctive characteristics,²¹⁹ and opinion about a voice.²²⁰

With TPC Section 21.19, the crime committed is the sending of unsolicited material through electronic means.²²¹ Therefore, the evidence needed to prosecute is the photo or video on the recipient’s phone. In addition to proving the accuracy of the duplicated photo(s) or video(s), the proponent must also show the “persons to whom they seek to ascribe the messages actually wrote them.”²²² This is crucial to prove because if the evidence is not authenticated, it is not relevant and ultimately is inadmissible.²²³ Although accomplishing this seems straightforward in the sense that one would assume if a picture came from a certain phone number, the owner of that phone number was the person who sent it—this is not always the case. Something sent from one’s phone could have been sent by someone with access to the phone, or even a hacker.

It has been noted “electronic evidence, including cell phone text messages, is most often authenticated through witness testimony and circumstantial evidence.”²²⁴ For example, if the photo is sent out of the blue, without previous conversation or if the owner of the phone denies

²¹⁶. See TEX. R. EVID. 901(a) (providing the necessary steps for authenticating or identifying evidence).

²¹⁷. Id.

²¹⁸. Id. R. 901(b)(1).

²¹⁹. Id. R. 901(b)(4).

²²⁰ Id. R. 901(b)(5).

²²¹. TEX. PENAL CODE ANN. § 21.19.

²²². Grosdidier, supra note 24.

²²³. See id. (“Evidence that cannot be authenticated is not relevant and is inadmissible.”).

²²⁴. Id. at 9.

sending it, it can be more difficult to prove they were the sender than with this identifying information. The possible sender, who could be the owner of the phone, may prompt possible defenses by saying someone took the phone and sent the photo without the sender’s consent, or even that a hacker sent the photo. In August 2018, State Senator Charles Schwertner was accused of sending sexually explicit messages to a student at the University of Texas.²²⁵ The Senator denied the accusations, and although the offensive messages c²⁰ from his Hushed account—a privacy app allowing users to use a separate phone number—and his LinkedIn account, a forensic investigation found the messages did not come from his personal phone.²²⁶

During the investigation, an attorney representing an unknown third party claimed his client was the sender. Schwertner corroborated this person’s story, stating he knew this person and had shared his user name and passwords with them, so it was possible they sent them without Schwertner’s permission.²²⁷ Despite Schwertner receiving the student’s number through LinkedIn and sending her a follow-up LinkedIn message directing her to the text messages he had sent her, even referring to the LinkedIn message in the following text messages, the University of Texas could not prove Schwertner sent the messages himself.²²⁸ The University even released an image of “Schwertner’s legislative business card, where the [alternate] phone number used for the texts is written in by hand.”²²⁹ Although the University acknowledged the unnamed person might not exist, they reported the evidence provided was not enough to prove Schwertner was the one who sent the messages. The investigation was completed without assigning blame to a party.²³⁰ This example shows just how difficult it can be to prove a certain individual sent a specific image or message.

Although there are multiple avenues a recipient or law enforcement agency may use, such as an in-depth investigation like Schwertner’s, there may not be available time or the necessary resources to do so within some jurisdictions. Overcoming potential claims of mistake may be an extremely

²²⁵. Allen, supra note 29.

²²⁶. Id.

²²⁷. Id.

²²⁸ Id.

²²⁹. Id.

²³⁰. Id.

difficult obstacle for those without resources, and circumstantial or direct evidence, needed to convict or indict a particular person.

2. Stigma Surrounding Receiving and Reporting Unsolicited Pictures

In this new digital age, sharing photos, ideas, and so much more online is viewed as a regular part of daily life, given the accessibility of the Internet and smartphones. In addition to the advantages of communicating online with others, issues arise, including online harassment and abuse.²³¹ Although men are typically more likely to experience any form of harassing behavior online, women encounter sexualized forms of abuse at much higher rates than men.²³² A U.S. survey found women, especially young women, “encounter sexualized forms of abuse at much higher rates than men. Some 21% of women ages 18 to 29 report being sexually harassed online, a figure that is more than double the share among men in the same age group (9%).”²³³ There are multiple theories as to why some men send unsolicited photos of their genitals, including: (1) men often misperceive a woman’s interest; (2) they find it thrilling; (3) it may be borne of hostility; (4) it may be about dominance; and (5) there may be an evolutionary basis.²³⁴ No matter the reason for sending these unsolicited images, receiving them has become a normalized part of some women’s lives.²³⁵ Because it is a common, talked-about, and sometimes brushed-off occurrence, the criminalizing of these acts may not be taken seriously. Women are almost expected to either ignore these sexual advances or not take them seriously.

²³¹. See Maeve Duggan, Online Harassment 2017, PEW RES. CTR: INTERNET & TECH. (July 11, 2017), https://www.pewresearch.org/internet/2017/07/11/online-harassment-2017/ [https:// perma.cc/6YRT-ZW4N] (“Men and women experience and respond to online harassment in different ways.”).

²³². See id. (“[W]omen are about twice as likely as men to say they have been targeted as a result of their gender . . . . [Men] are around twice as likely as women to say they have experience harassment online as a result of their political views . . . .”).

²³³. *Id. *

²³⁴. See Doug Criss, Wonder Why Men Send Photos of Their Genitals? Here Are Some Theories, CNN: HEALTH. (Feb. 10, 2019, 5:44 AM), https://www.cnn.com/2019/02/09/health/reasons-why-mensend-explicit-photos-trnd/index.html [https://perma.cc/4QLW-96BW] (providing different theories by multiple people, including a sex therapist and psychotherapist as to why men send photos of their genitals).

²³⁵. Jennifer Swann, 19 Women on What It’s Like to Receive Dick Pics, MEL, https://melmagazine.com/en-us/story/19-women-on-what-its-like-to-receive-dick-pics [https:// perma.cc/Z3KR-4JMW] (providing testimonials from women who have received unsolicited sexually explicit images and how some believe it is normal).

Texas Penal Code Section 21.19 now gives women the power to report and possibly punish the senders of this visual material,²³⁶ but some women may not want the backlash from reporting it, or they simply would rather block the sender than go through the process of reporting the incident and further cooperating with law enforcement, which can be tedious and costly for the recipient.²³⁷ This process can include having the victim file a police report, continual communication with the district attorney’s office, and possibly testifying in the trial if the proceedings reach this stage without being previously terminated.²³⁸ Since TPC Section 21.19 is one of the first state laws to criminalize sending unsolicited sexually explicit images without some kind of “intent to harm or harass” element, there is no telling how many recipients of these messages will come forward and want to press charges, especially after a first occurrence with a particular person. Although some recognize there are obstacles to overcome in order to properly prosecute under the law, sponsors of the bill remain confident it will be worth passing it if it acts as a deterrent to this behavior.²³⁹