On October 26, 2021, the Court of Appeals for the First District of Texas ruled that the Texas child erotica statute was unconstitutional. This ruling stemmed from a case in which a defendant was charged with possession of child erotica, which is defined by Texas Penal Code Section 43.262.
Specifics of the case
The case was from a March 1, 2019 arrest in which the defendant was charged with possessing child pornography. On July 11, 2019, he was charged with possessing lewd visual material of a child. This charge was based on authorities finding images on his cellphone.
Attorneys for the defendant argued that the language in Texas’ erotica law regulated protected speech and outlaws speech that can’t be categorized as either obscene or child pornography. As it’s written, the Texas Penal Code would make most social media influencers who are underage guilty of Texas’ erotica law for their provocative posts—along with anyone else who viewed or possessed any of the images.
Texas’ erotica law, explained
According to Section 43.262, you can be charged under the child erotica law if you knowingly possess, access (with intent to view) or promote visual material that:
- Lewdly exhibits the genitals or pubic area of children under the age of 18 (where the child(ren) are either unclothed, partially clothed or clothed),
- The visuals were made with the intent of sexual interest, or
- The visuals were not made to be artistic, literary, political or scientific in nature.
Attorneys for the client argued that the statute violated the defendant’s First Amendment right and that Texas’ erotica law is over-broad, vague and needs to be revised.
The Texas Court of Appeals agreed that Section 43.262 doesn’t bar neither child pornography nor obscenity. Rather, Section 43.262 handles the knowing possession of visuals that show lewd views of the pubic area of clothed children, also known as child erotica.
Trickle down implications
Interestingly, this ruling will likely have a trickle down impact on Netflix, which was also charged using the same statute. In Tyler County, Texas, Netflix has been indicted by the grand jury for promoting lewd material depicting children for its 2020 French coming-of-age film, Cuties. This film features an 11-year-old Senegalese immigrant girl who joins a dance group.
In the Netflix case, as the statue is written, not only would Netflix be guilty, but everyone who viewed the film would also be subject to criminal charges under the child erotica law.
If you feel that you’ve been unjustly charged with a sex crime or child pornography, you need the assistance of an experienced defense attorney.