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  1. V. TEXAS PENAL CODE SECTION 21.19 FILLS THE GAP FOR DIGITAL SEXUAL HARASSMENT
    1. A. Texas Penal Code Section 21.19 Compared to Texas’s Harassment Law
      1. 1. Texas Penal Code Section 42.07

V. TEXAS PENAL CODE SECTION 21.19 FILLS THE GAP FOR DIGITAL SEXUAL HARASSMENT

A. Texas Penal Code Section 21.19 Compared to Texas’s Harassment Law

1. Texas Penal Code Section 42.07

Many states have their own harassment laws in which the criteria to prosecute under seems similar to the criteria necessary to prosecute under TPC Section 21.19, including Texas.240 Texas’s harassment law, Penal

236. TEX. PENAL CODE ANN. § 21.19.

237.* See Criminal Case Flow*, BEXAR CNTY., https://www.bexar.org/DocumentCenter/View/4487/Criminal-Case-Flow-Chart?bidId= [https://perma.cc/AZ97-VZ25] (providing a flow chart describing the steps of a criminal case).

238 See id. (listing the steps of a criminal case).

239. See Closson, supra note 22 (quoting Rep. Morgan Meyer, the author of the legislation: “‘We understand that enforcement will be a challenge,’ . . . ‘but this bill is intended to serve as a deterrent as well. It’s keeping people aware that sending unsolicited lewd photos will not be tolerated . . . and stopping them from doing it in the first place’”).

240. Compare IND. CODE ANN. § 35-45-2-2(a)(4)(B) (West 2019) (“A person who, with intent to harass . . . uses a computer network . . . or other form of electronic communication to: (A) communicate with a person; or (B) transmit an obscene message or indecent or profane words to a person.”), and PENAL CODE § 42.07(a)(1) (“(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the

Code Section 42.07, makes it a crime if, “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene.”241 This harassment law has similarities but differs from TPC Section 21.19, which criminalizes the simple act of knowingly sending certain sexual visual material without the recipient’s request or express consent.242

One could argue TPC Section 21.19 is easier to prosecute under because it is not necessary to prove a certain state of mind for the sender, only that the visual material was not requested nor expressly consented to. This is unlike Texas’s Penal Code Section 42.07, which requires the offender to have had intended to “harass, annoy, alarm, abuse, torment, or embarrass another” when sending it.243 Under Section 42.07, receiving one piece of the obscene visual material described might not be enough to get a conviction if the sender claims it was to propose a genuine activity.244 This is different from TPC Section 21.19 because the sender of the visual material can be prosecuted after sending it for the first time, even if the sender was genuine and thought the recipient would appreciate the gesture.245 The “intent” element in Section 42.07 allows the recipient to press charges against the sender only when the circumstances and evidence prove beyond a reasonable doubt that the “intent” element is indeed met.246 Intent inherently requires more evidence than the lack of request or express consent of the recipient, which prevents an influx of lawsuits and gives law enforcement more information based on circumstantial and direct evidence provided by the recipient in determining whether the case can be tried in court successfully.

Section 42.07 also differentiates from TPC Section 21.19 by criminalizing obscene material, defining “obscene” within the statute as “containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or

course of the communication makes a comment, request, suggestion, or proposal that is obscene.”), with PENAL CODE § 21.19 (H.B. 2789) (explicitly excluding an “intent” requirement).

241. PENAL CODE § 42.07(a)(1).

242 *Id. *§ 21.19.

243. Id. § 42.07(a).

244 Id.

245 Id. § 21.19.

246 Id. § 42.07(a).

anilingus, or a description of an excretory function.”247 This definition is far more narrow than what is punishable under TPC Section 21.19.248 Additionally, there is an “intent” requirement under Section 42.07 and it is one of seven punishable offenses under the Harassment law.249 Because of this, Section 42.07 is impeded from becoming a significant deterrent and symbol against the normalization of sending unsolicited sexual visual material. Texas Penal Code Section 21.19 is a major symbol and direct stance against indecent online exposure in a time of desperate need.

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