Don’t Be a Dck by Sending a Pic: Texas Attempts to Attack the “Dck Pic” Epidemic by Criminalizing the Sending of Unsolicited Sexually Explicit Photographs

I. Introduction

Imagine that you recently gave your phone number to someone, perhaps a new love interest, colleague, or friend. Now imagine that your phone buzzes. You open a new message and see that, without prompting, this person sent you a picture of their exposed genitalia. Alternatively, imagine that you are in a crowded coffee shop or walking down the street when a sexually explicit photo is AirDropped^[1] to your phone from an unknown, but nearby, sender. Or worse yet, after expressing a controversial opinion online, your social media and e-mail accounts are inundated with “trolls”^[2] sending pictures of genitalia.^[3]

It may surprise you to learn that your reaction to the above scenarios could depend on your gender.^[4] When presented with a list of adjectives and asked to describe the sending of pictures of genitalia, millennial women most frequently selected “gross,” “stupid,” and “sad,” in descending order.^[5] Although the male participants also selected “gross” most frequently, the second most common response was “sexy,” with 30% of all male participants choosing that descriptor.^[6]

On June 8, 2019, a new bill—H.B. 2789—was signed into law by the Texas Governor.^[7] This new bill, which is now codified as Texas Penal Code section 21.19^[8] (Section 21.19), made it a crime in Texas to electronically send explicit “visual material” without the prior consent of the recipient.^[9] While a bill of this nature was much needed, the purpose of this Comment is to express concern about the effectiveness of Section 21.19 as currently written in deterring the now criminal conduct and to suggest changes to Section 21.19 intended to bolster the deterrent effect.

This Comment first discusses the prevalence of receiving unsolicited explicit photographs, why the act of sending such photographs should be criminalized, and how criminalization came to be in Texas.^[10] It then analyzes Section 21.19 to determine what elements must be satisfied to constitute an offense under the statute.^[11] The Comment next discusses potential barriers to prosecuting the crime, including the type of crime, anonymity on the internet, and the crime’s low punishment.^[12] Next, it describes how these barriers, when combined with limited prosecutorial resources, will lead to low rates of prosecution of this crime and, thus, a limited deterrent effect of Section 21.19.^[13] Lastly, the Comment suggests changes that will help increase Section 21.19’s deterrence of the lewd, and now criminal, behavior.^[14]

II. Dangers and Prevalence of Unsolicited Photographs Leading to Section 21.19’s Enactment

Section 21.19 and statutes like it are much needed in today’s society. This is because being subjected to unsolicited pictures of genitalia has a negative effect on mental health. A study published in 2019 found that, while there was not a difference in mental health between participants that had sent or received sexually explicit messages and those that had not, there were “moderate significant differences” for those that received unwanted messages of this type.^[15] Unsurprisingly, these differences were negative.^[16] The receipt of unwanted explicit messages was found to be correlated with “higher depression, anxiety, and stress, and lower self-esteem” in the recipient.^[17]

Considering these negative mental side effects, the prevalence of sending and receiving unsolicited photographs of male genitalia^[18] is unsettling. A 2017 survey showed that the majority of millennial women (53%) have received a photograph of male genitalia and, of those women, 78% reported that they received such a photograph without consent or solicitation.^[19] Whitney Wolfe Herd, Founder and CEO of the online dating application Bumble, found the issue to be so pervasive that her team developed and implemented a “Private Detector” feature for Bumble.^[20] This feature “alert[s] Bumble users that a photo is likely inappropriate and give[s] [the recipient] the option to delete [the picture] and block [the sender] . . . before even viewing it.”^[21] However, such features only seem to normalize the problem without providing a permanent solution.

In search of solutions, Wolfe Herd lobbied and testified in front of the Texas Legislature in support of a bill criminalizing the activity.^[22] In her testimony, Wolfe Herd questioned, “[i]f indecent exposure^[23] is a crime on the streets, then why is it not [a crime] on your phone or your computer?”^[24] Wolfe Herd gained the support of Texas State Representative Morgan Meyer, who authored and filed H.B. 2789 in hopes of filling the “void” in Texas law.^[25] Likely recognizing the gravity of the situation, Meyer’s bill moved quickly through the Texas House and Senate^[26] and faced little opposition along the way.^[27] After being signed into law, H.B. 2789 was codified as Texas Penal Code section 21.19, which went into effect on September 1, 2019.^[28] Meyer acknowledges that enforcement of this new criminal law might be challenging but remains hopeful that the law will nonetheless serve as a deterrent.^[29] This, however, seems improbable; without enforcement there is no fear of prosecution, and without a fear of prosecution the deterrent effect of the law will be limited at best.^[30]

III. Violating Section 21.19: Elements, Defenses, and Punishment

Convicting a person for a violation of Section 21.19 is not as simple as showing that a lewd image was sent from the person’s phone or computer. In United States common law, it has long been held that the prosecution must prove all elements of a crime beyond a reasonable doubt^[31] for a defendant to be found guilty of that crime.^[32] Texas has also codified this requirement in the Texas Penal Code.^[33] The text of Section 21.19 lays out multiple elements that are required for the crime of “unlawful electronic transmission of sexually explicit visual material.”^[34] The text of the statute is:

A person commits an offense if the person knowingly transmits by electronic means visual material that . . . depicts . . . any person engaging in sexual conduct or with the person’s intimate parts exposed . . . or . . . covered genitals of a male person that are in a discernibly turgid state; and is not sent at the request of or with the express consent of the recipient . . . . An offense under this section is a Class C misdemeanor.^[35]

This language provides multiple elements that must be proven to constitute a violation of Section 21.19. Each of the elements poses potential difficulties for prosecutors attempting to prove that the element is met beyond a reasonable doubt, as well as alternate explanations and defenses for offenders.

A. The Elements of Section 21.19 and Difficulties Proving Each Element

The first element that the prosecution needs to prove is the act or conduct. In Section 21.19, the required conduct is the sending of the prohibited “visual material” by “electronic means.”^[36] The Texas Penal Code defines “visual material” as a myriad of things, including, but not limited to, “any film, photograph, videotape . . . [or] any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.”^[37] The term “electronic means” is not explicitly defined in the Texas Penal Code, but the term can be summed up as any phone, computer, or other online communication.^[38]

The act of sending the photograph will expectedly cause the most problems for prosecutors.^[39] Although it might seem that an image sent from a person’s phone or computer can be assumed to be sent by that person, it is not so easy for prosecutors.^[40] In Butler v. State, the Texas Court of Criminal Appeals expressed great concern of courts assuming who sent a text message when the owner of the phone number “is the only fact . . . linking a text message to the purported author.”^[41] Should the accused dispute that he sent the photograph, the prosecutor must provide additional evidence—whether direct or circumstantial—that gives rise to the conclusion that the accused was the actual sender of the photograph.^[42] An accused person might also try to use the argument that has become extremely common in cybercrime cases: the “I’ve been hacked” defense.^[43] While a defense of this type does not necessarily equate to a winning argument, it could raise reasonable doubt in a juror’s mind that the prosecution would need to overcome to secure a conviction.^[44]

In addition to proving that the accused performed the act, the prosecution must also prove the existence of two attendant circumstances: the contents of the photograph and the lack of a request or expressed consent from the recipient.^[45] For the contents of the photograph, the prosecution must prove that the photograph contains sexual conduct,^[46] exposed intimate parts,^[47] or “discernibly turgid”^[48] male genitalia—even if said genitalia is covered, rather than exposed.^[49] Absent issues such as blurred or obscured images, this will likely be the easiest of the elements for the prosecution to prove, because establishing the existence of this element can be done by simply looking at a photograph or watching a video. The second circumstance—regarding requests or consent—requires the prosecution to prove that the photograph is truly unsolicited.^[50]

As discussed above, counterarguments regarding the circumstance of the contents of the photographs or videos will likely be rare. However, the second attendant circumstance, that the photograph was “not sent at the request of or with the express consent of the recipient,”^[51] could very well be difficult for the prosecution to prove beyond a reasonable doubt. The Texas Legislature was wise to require a form of affirmative consent^[52]—a request or expressed consent— under the Texas Penal Code rather than simple consent, which allows for “apparent” consent.^[53] However, absent a written—and unlikely—communication from the recipient requesting or consenting to receipt of the lewd photograph preceding its sending, the consent element will likely divulge into a classic “he said, she said” argument.^[54] The accused can easily argue that the recipient consented to the sending of the photograph in person or while on a telephone call prior to the accused’s sending. In such a situation, absent other evidence, the case’s outcome would rely on the jury’s weighing of the credibility of the sender’s testimony compared to the recipient’s testimony.^[55]

The last element that the prosecution must prove is the mens rea or mental state. Section 21.19 requires that the accused commit the act of sending the photograph with the “knowingly” mental state.^[56] The Texas Penal Code states that “[a] person acts knowingly . . . with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.”^[57] While the plain language of Section 21.19 makes it quite clear that the “knowingly” mens rea applies to the act of sending the photograph,^[58] it is unclear if that same mens rea applies to the attendant circumstances. Although the United States Supreme Court held that the “knowingly” mental state should apply to the attendant circumstances in a similar situation,^[59] the current position of Texas law remains unclear.^[60] Although Texas courts have not always followed the Supreme Court’s direction in cases on this subject matter, many of these contradictory cases involved statutory rape or other forms of indecency with a child^[61] and the holdings, therefore, could hold less weight in an analysis of Section 21.19 when protection of children is not a factor.^[62]

As discussed above, with the uncertain state of Texas’s mens rea standard in regard to the circumstances,^[63] accused persons will almost certainly argue that the “knowingly” mens rea must also apply to Section 21.19’s attendant circumstances. Should such an argument be successful, the prosecution would have the added task of proving that the accused was aware of the contents of the photograph and was aware of the lack of expressed consent.^[64] The argument for being unaware of the contents of the photograph could actually carry substantial weight in the eyes of the jury. This is due to the fact that in today’s society one wrong click can result in disastrous consequences and such wrong clicks are surprisingly prevalent.^[65] If a job applicant can somehow accidentally send a potential employer a picture of Nicolas Cage instead of her resume,^[66] a jury could surely believe that an accused person sent a lewd photograph when he actually meant to send an innocent, clothed one.

B. Small Punishment Under Section 21.19

The third subsection of Section 21.19 discusses the crime’s penalty.^[67] Should the prosecution be able to prove all of the above elements beyond a reasonable doubt, the sender of the lewd photograph would be guilty of a Class C misdemeanor.^[68] Under the Texas Penal Code, the maximum penalty for persons found to have committed a Class C misdemeanor is a fine of $500.^[69] Commentators have compared the punishment of Section 21.19 to that of a speeding ticket,^[70] because the violations of each carry a similar monetary fine.^[71] Unlike Class A and B misdemeanors, Class C misdemeanors do not carry the possibility of jail time.^[72] Further, while all other classifications of crimes in the Texas Penal Code allow for increased penalties for “repeat or habitual” offenders,^[73] repeat offenders of Class C misdemeanors do not necessarily risk this same fate.^[74] The only two Class C misdemeanors for which judges can apply increased penalties in cases of repeat offenders are disorderly conduct and public intoxication.^[75]

After reviewing the elements of the crime as written, one must wonder if Section 21.19 will have the deterrent effect for which its proponents presumably hope. The difficulty of proving a violation of the crime, when combined with other factors outside of the element, will create a low likelihood of the crime being enforced and prosecuted. Such other factors are expanded upon in the Parts that follow.

IV. Beyond the Elements: Additional Barriers to Prosecution and Deterrence

In addition to the difficulties in proving the elements of Section 21.19 discussed above,^[76] there are additional barriers that are likely to prevent prosecution under Section 21.19 and, therefore, limit its deterrent effect. These barriers to prosecution are caused by the nature and classification of the crime as well as the anonymity of the internet.

A. The Nature of the Crime and Classification of Section 21.19 as a Sexual Offense

There are two ways that Section 21.19’s classification as a “sexual offense”^[77] will result in a barrier to prosecution. The first is the heightened likelihood that an accused person will dispute the charge and the second is low rates of reporting the crime by the victims.

1. A High Likelihood that the Accused Will Dispute the Charge.

Because of Section 21.19’s placement in chapter 21 of the Texas Penal Code, anyone charged or convicted of the crime will have a “sexual offense” on their record.^[78] If convicted of the crime, the sexual offense could not be removed from the guilty party’s record through expungement.^[79] Although the stigma of a sexual offense on your criminal record is surely not as damaging as that which occurs when a crime requires sex offender registration, those charged under Section 21.19 might fear similar, albeit less severe stigma.^[80] Although Section 21.19 does not require “sex offender” registration,^[81] stigma might still exist in circumstances where a potential employer, landlord, or similar individual does a background check^[82] or where friends or family are made aware of the conviction.^[83]

Due to this fear of stigmatization, those accused of Section 21.19 violations will surely take the case to court to attempt to avoid having the crime on their criminal records. This likelihood of disputing the charge is in contrast to the speeding ticket analogy that is being touted in the news.^[84] These sources make it sound as if it will be easy for police to hand out Section 21.19 “tickets” like they do with speeding tickets.^[85] However, only approximately 5% of speeding tickets are contested in court,^[86] likely due to the low monetary fines^[87] and lack of societal stigma. Although the fines for speeding and Section 21.19 are similar in value,^[88] the stigma of being convicted of a sexual offense will likely result in contest rates significantly higher than 5% for Section 21.19. A contested case will result in more resources that must be expended by prosecutors to secure a conviction.^[89] As will be discussed below, when the cost is high for prosecution and the potential gain is low, the likelihood that prosecutors will pursue a conviction decreases.^[90]

2. Risk of Low Rate of Reporting by Victims.

Another barrier to prosecution and deterrence of Section 21.19 is the rate at which the crime will be reported. Although it is difficult to know with absolute certainty, it is to be expected that many victims who receive unsolicited lewd photographs will not report the crime to law enforcement. To support this theory, an analogy can be drawn between the crime of Section 21.19 and online harassment.^[91] While many Americans have experienced online harassment,^[92] only a small percentage of these occurrences are reported to police—even when the harassment is categorized as “severe.”^[93] If victims are reporting severe online harassment at such low rates, it is unlikely that victims that receive unsolicited lewd photographs will report the crime at a much higher rate. A study published in 2019 found that, of the participants who had received an unsolicited “sext,” over two-thirds (69%) took no action and less than 1% informed the police.^[94]

Further, due to its categorization as a sexual offense, Section 21.19 can be compared to other sexual offenses such as sexual assault.^[95] The vast majority of sexual assaults are committed by someone that the victim knows, whether that be their partner, family member, or other acquaintance.^[96] Statistics from the U.S. Department of Justice show that when the assault was committed by one of these non-strangers, the crime is less likely to be reported to law enforcement.^[97] Additionally, “[t]he closer the relationship between the female victim and the offender, the greater the likelihood that the police [are not] told about the rape or sexual assault.”^[98] If the analogy to Section 21.19 holds true, a large portion of the Section 21.19 cases reported—and, therefore, that need to be investigated and prosecuted—would also be those committed by strangers to the victim. If most cases are those committed by strangers, more work will be added for prosecutors as they have the added step of finding and identifying the perpetrator, who could be an anonymous online internet user.^[99]

B. The Expansive and Anonymous Nature of Today’s Internet

The fact that many of the strangers sending unsolicited pictures could be anonymous internet users located anywhere in the world will make it extremely difficult to track down and prosecute these types of perpetrators. This, however, is not due to issues of jurisdiction. Although many perpetrators might be located outside of the state of Texas, the state can still exercise jurisdiction over that person in certain situations.^[100] This is because under the Texas Penal Code, the State of Texas has jurisdiction over a person if their “conduct outside [Texas] constitutes an attempt to commit an offense inside [Texas].”^[101] Despite the ability to do so, it is doubtful that Texas prosecutors would or could expend the resources necessary to bring perpetrators from other states—or especially other countries—to be prosecuted in Texas.^[102]

The difficulty is created by the fact that anonymity on the today’s internet is commonplace.^[103] A 2017 study of Twitter account anonymity found that 6% of all accounts reviewed were “anonymous,” while another 20% were “partially anonymous.”^[104] Further, this anonymity seems to encourage bad behavior, such as online harassment, making such behavior commonplace.^[105] A majority of internet users have either personally experienced online harassment or encountered another user being harassed.^[106] Further, a majority of online harassment victims (54%) report that their most recent incident involved a person whose identity the victim did not know.^[107] Most relevant to Section 21.19 violations, “89% of Americans say the ability to post anonymously online enables people to be cruel to or harass one another.”^[108] While the anonymity of the sender does not necessarily mean that it will be impossible to find the perpetrator,^[109] it adds another costly step for prosecution.

V. Prosecutorial Resources and the Effect on Investigation

All of the above steps—proving the elements beyond a reasonable doubt, high rates of contested cases, and high rates of reported cases being committed by strangers and anonymous internet users—increase the amount of time and other resources that must be expended by investigators and prosecutors in attempting to convict someone of a Section 21.19 violation. This fact is troubling because, as discussed below, abundant time and resources are a rarity in prosecutor’s offices.

A. Excessive Caseloads and Prioritization

The fact that attorneys, including prosecutors, can be overworked is not a recent revelation.^[110] To help prevent such overworking, the National Legal Aid and Defender Association published standards for maximum caseloads in 1973.^[111] These widely accepted standards^[112] suggest that the maximum number of felonies per attorney should not exceed 150 per year and misdemeanors should not exceed 400 per year.^[113] A Texas study published in 2015 found that the recommended caseload was even lower than previously published in the 1973 study.^[114] While these studies apply to criminal defense attorneys, namely public defenders, it is suggested that the recommended caseload for prosecutors is similar to that of defense attorneys.^[115]

Texas prosecutors conducted research to determine approximately how many cases are being handled by prosecutors in offices in some of the country’s most populous counties.^[116] While the caseloads of some of the offices fell below or near the standards,^[117] many of the counties exceed the recommended limits.^[118] When looking specifically at Texas counties—Harris, Dallas, Tarrant, and Bexar—each is near or exceeds the recommended caseloads in the Texas study, with Harris County (Houston) having the largest average caseload.^[119]

It does not appear that the problem of overextended prosecutors has improved in recent years.^[120] In 2019, the problem was so severe in Harris County, Texas, that the District Attorney requested a budget increase to allow the hiring of 40 support personnel in addition to over 100 more assistant district attorneys.^[121] As the number of cases increases, the amount of time that a prosecutor can dedicate to each case decreases, but the implications of excessive caseloads are greater than this.

Prosecutors—whether unconsciously or by direction—prioritize their more serious cases when caseloads are high.^[122] This practice is nothing new,^[123] and this prioritization takes many different forms. The most extreme of which is the dropping of nonviolent misdemeanor charges due to a lack of prosecutors to handle the cases.^[124] This is precisely what happened in King County, Washington, where 1,500 misdemeanor cases were dropped in 2018 simply because the King County Prosecuting Attorney’s Office did not have enough prosecutors.^[125] The Office reasoned that they had to prioritize “fresh” and “more serious” cases over the backlogged misdemeanor cases.^[126] Even when offices are not pushed to the point of dropping large quantities of cases, they still tend to prioritize felonies^[127] and other violent crimes^[128] over non-violent misdemeanors when resources are sparse. Former Houston Police Chief Charles McClellan reported: “[W]e have to use our resources efficiently, and when you have blood running down the street like we do in some of our major cities, addressing those violent crime problems is our priority. That’s what people see every day and expect us to address.”^[129]

Much of the research on large prosecutorial caseloads is focused on large metropolitan areas,^[130] but that does not mean prosecutors in less populous counties are substantially better off.^[131] Prosecutor’s offices in less populous counties are much smaller and employ less prosecutors, leading to a similar caseload-to-prosecutor ratio compared to large metropolitan areas.^[132] Further, smaller offices with fewer prosecutors are less equipped to take on spikes in the crime rate.^[133]

B. Limited Ability to Investigate Cybercrimes

Potential limitations on prosecution do not only come in the form of limited personnel. Local police departments have been described as “ill-equipped to investigate digital crimes, which can originate across state lines or outside of the United States.”^[134] A cybersecurity expert described the process of reporting cybercrimes to local law enforcement as a “check the box” procedure; it is something that must be done, but it is not something that a victim should expect results from doing.^[135] A former Texas detective also explained that police departments focus their attention on cyber cases that involve crimes like “terrorism, human trafficking or child pornography.”^[136] This is likely due in part to limited personnel and caseload issues like those described above. Police likely need to prioritize cybercrimes in which investigation can result in preventing physical harm offline.

Publications discussing this issue often suggest that victims report computer crimes to the FBI,^[137] which is better trained and equipped to handle such crimes.^[138] However, when reporting to the FBI, there is once again an issue with prioritization. The FBI explicitly lists their “[k]ey [p]riorities” as Computer and Network Intrusions and Ransomware with “[r]elated [p]riorities” of Identity Theft and Online Child Predators.^[139] Further, outside of cybercrimes, the FBI also investigates terrorism, counterintelligence, public corruption, civil rights violations, as well as organized and white-collar crime.^[140] While no such information is published by the FBI and there is no minimum damage amount to submit a financial internet crime claim,^[141] some suggest that the organization uses a “million-dollar threshold” to determine if they will investigate a reported crime further.^[142] When reviewing the sheer number of complaints that the FBI receives, that idea does not sound farfetched. The FBI’s Internet Crime Complaint Center (IC3) receives about 900 complaints per day.^[143] In 2018 alone, the IC3 received a total of 351,937 complaints alleging total losses over $2.71 billion.^[144]

It appears that victims have nowhere to turn for enforcement of their Section 21.19 complaints. Local police departments will likely be overburdened and unable to properly investigate and prosecute their claims, while the claim will be outside of the scope of investigation for other better-equipped agencies such as the FBI.

VI. Difficult Cases and Limited Resources Yield Low Rates of Prosecution and Limited Deterrence

Considering these prosecutorial limitations, combined with the other difficulties of Section 21.19 violations—proving the elements beyond a reasonable doubt, high rates of contested cases, and high rates of reported cases being committed by strangers and anonymous internet users—Section 21.19 will rarely be successfully charged and will, therefore, be largely ineffective in helping solve the widespread^[145] cyber flashing epidemic.^[146] This is because the complexity and difficulties of proving each Section 21.19 violation add to the cost of prosecuting each violation.

Each element that must be proved for conviction results in more investigative hours and each additional hour of investigation increases the cost to prosecute the case. A single investigation into a cybercrime can cost thousands of dollars.^[147] These costs are further enlarged when ill-equipped local law enforcement officers must hire consultants, engage in training, or seek assistance from other administrations for the investigative techniques.^[148] Even in cases where law enforcement begins investigating a case, they may be stopped in their tracks if any unexpected steps are encountered.^[149] Prosecutor’s offices simply do not have the resources necessary to investigate every misdemeanor case, let alone a Class C misdemeanor case.^[150] Complex and expensive Section 21.19 cases with small penalties will fall to the bottom of the priority list.

The reality is that law enforcement and prosecutor’s offices have already proven to be inadequate in investigating other crimes involving anonymous online perpetrators.^[151] Some such crimes are arguably higher priority than Section 21.19 violations, including cyberstalking, harassment, and other online threats that have a potential to threaten or devolve into “offline” danger to the victim.^[152] Even if the stars align and prosecutors have a solid case against a Section 21.19 perpetrator whom they are able to identify and locate, there is still a possibility that prosecutors will be prevented from securing a conviction against the perpetrator in court due to the difficulty of proving each element beyond a reasonable doubt.^[153] Further, will prosecutors approve expending additional time and resources to bring a resident of a different state—or even more egregious, a different country—just to convict him of a Class C misdemeanor and collect, at most, $500? Certainly not.

VII. Suggestions For Increased Deterrence

To increase the overall deterrence of the criminalized behavior, the first suggestion is somewhat outside of the hands of the Texas Legislature. Greater nationwide deterrence could be achieved if a majority of U.S. states adopted legislation criminalizing unsolicited lewd photos as well. Section IV.B above raised doubt as to whether prosecutors would call residents of other states to be tried in Texas even if they had a strong case. However, they would not need to do this if the perpetrator’s home state could instead prosecute him of the crime. Texas prosecutors could share their information on the crime with prosecutors in those states in hopes that other states would also share information they had about Texas-based perpetrators. Currently, only South Carolina has a comparable criminal statute^[154] and New York is entertaining the idea of creating such a law.^[155]

Even if the adoption of similar laws in other states does not lead to cooperation in prosecution, it may still lead to greater deterrence. This is due to the fact that criminal laws have an influence on society by setting social norms.^[156] If all states create widely publicized statutes similar to Section 21.19, it is possible that a deterrent effect could be achieved by the statement to society by the legislature that this behavior is not acceptable and will not be tolerated.^[157] The creation of social norms is not enough and this statement by the legislatures would be stronger if states are able to follow-through by prosecuting violators of the statutes.

It is difficult to envision Section 21.19—as it is currently written—effectively serving as a deterrent to the criminalized conduct. With one or more changes to Section 21.19’s language, its deterrent effect could be greatly increased. The most critical change to Section 21.19 is some form of increase to the penalty. While increases in penalties alone have been said to have little effect on deterrence,^[158] it could still have an effect in this case due to the current disproportionality between the penalty of the crime and resources required to prosecute it. It must be economically logical to enforce the crime.^[159] If the penalty is increased, it is more likely that prosecutors will be more willing to expend some of their limited resources in investigating and prosecuting the crime, thus leading to deterrence.^[160]

One option for increasing the penalty is to change the classification of the offense from a Class C to a Class B misdemeanor. The sending of unsolicited lewd photographs is frequently compared to indecent exposure,^[161] but the Texas Legislature made Section 21.19 a Class C misdemeanor while Indecent Exposure is a Class B misdemeanor.^[162] Unlike Class C misdemeanors, Class B misdemeanors carry a possibility of jail time and a higher maximum fine.^[163] Also unlike Class C misdemeanors, Class B misdemeanors allow increased penalties for repeat offenders.^[164] In the alternative, if the Legislature believes that classification as Class B is too extreme, they should at least consider adding Section 21.19 to the limited list of Class C misdemeanors that allow for increased penalties for repeat offenders.^[165] This change would allow judges to use their discretion to add a short prison sentence or increased fine^[166] to those repeat offenders that seem undeterred by the small $500 fine of Section 21.19.

The above can be coupled with another suggestion to help correct the disproportionality between cost and punishment. One of the major obstacles that prosecutors will face in proving a Section 21.19 violation is proving the “knowingly” mens rea. Changing the mens rea to “recklessly”^[167] will help to prevent many potential fabricated defenses.^[168] Although this proposed change will not alone make prosecution cheap or easy, any reduction in the cost can lead to increased prosecution and deterrence.

Lastly, although prosecutorial resources remain low,^[169] Texas should consider investing in training for local police departments for investigating cybercrimes. The internet has been in existence for over 50 years^[170] and the fact that police departments are not trained to handle these types of crimes^[171] is unsettling. Although this would likely be costly,^[172] the Legislature should weigh that cost against the costs to society caused by the fact that many cybercrimes go unpunished because local law enforcement agencies are ill-equipped to handle those cases.^[173]

While Texas’s swift attention to the pervasive issue is commendable, the state’s efforts will only be worthwhile if Section 21.19 has a deterrent effect. In reviewing the elements and issues that will be presented when prosecuting a Section 21.19 case, it is doubtful that the statute will effectively deter the conduct in its current state. The Texas Legislature should remain attentive to this issue and enact changes to Section 21.19 if this predicted low deterrence becomes a reality.

Erin Horan Mendez