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Mark S. Zaid @MarkSZaidEsq
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(1) REVENGE PORN THREAD: Earlier today Texas Tribune posted a story concerning Rep. Joe Barton (R-Ennis) that he issued an apology statement after it was learned a graphic image of him nude (apparently showing his penis), was circulating via social media.…
(2) Was this revenge porn? Should there not be an outcry or does Barton being a man negate outrage? I take these situations very seriously, especially since I have represented women (pro bono in fact) who have suffered as victims of revenge porn,…
(3) In my opinion, I don’t believe there should be a double standard based on gender. Were the gender roles reversed, I daresay, especially in the current climate, all hell would be breaking loose. So let’s take a moment to examine the legal issues in this case thus far.
(4) But first, who is Congressman Barton? He joined Congress in 1985 (17th term). He is longest-serving member of Congress from Texas & fifth-longest serving Republican in House. He previously served as chairman of House Energy & Commerce committee and is now its’ vice-chair.
(5) No surprise that Cong. Barton, being from TX & Republican, is conservative. He is a member of Freedom Caucus, and is held in high regard by groups such as Family Research Council given his positions on abortion and gay rights. Does any of that matter? Not legally.
(6) Barton issued a statement that said: "While separated from my second wife, prior to the divorce, I had sexual relationships with other mature adult women." He continued that "Each was consensual. Those relationships have ended. .....
(7) .... I am sorry I did not use better judgment during those days. I am sorry that I let my constituents down."
(8) When the story first broke we did not have many facts. For example, it was unclear how his photo was posted onto social media, who put it there, or what was the motive. Answers to these questions could impact whether it was revenge porn.
(9) But now, thanks to additional reporting by @washingtonpost, whose reporters spoke to the “other” woman, we know more facts. Frankly, they don’t look good for the people who distributed the Congressman’s private images.…
(10) With the caveat that more information can obviously emerge, let’s examine what we know at the moment. Any forthcoming quotes are from the Washington Post article.
(11) First, a consensual sexual relationship began between Barton and this woman in 2011. It started out online (sexting, sending images) and eventually lead to at least two actual physical encounters (in TX and DC).
(12) Second, Barton was still married to 2nd wife when relationship began. His wife filed for divorce in Apr 2014 and was final in Feb 2015. It is unclear when they separated. Frankly, none of this is relevant to a legal analysis of whether what happened constitutes revenge porn.
(13) Third, somehow this woman – his “mistress” – found out abt other women Barton was communicating with & apparently didn’t like that. The facts are not entirely clear on timeline or substance, but she was able to contact some of these other women and that got back to Barton.
(14) Somehow topic of images came in play. She secretly recorded a telephone conversation with Barton (this appears to be legal in TX as a one party state) in 2015 “in which he warned her against using the explicit materials ‘in a way that would negatively affect my career.’”
(15) Fourth, the woman seems to have admitted to WaPO that she shared private materials, i.e., nude photos/videos of Barton, with others (seemingly more than one person in fact), although she denies being the one who posted them online.
(16) She even shared them with the Post including “text and social-media messages she exchanged with Barton, as well as a 53-second cellphone video Barton recorded of himself while masturbating.” Lovely.
(17) Fifth, the penis image that has circulated through social media is said to have been a still image from the video. Alec Jones’ InfoWars site somehow obtained a copy of the video and published it Wednesday night, but it has since been removed.
(18) Sixth, what was her motive? The woman said she “never had any intention to use the materials to retaliate against Barton.” Except actions speak louder than words. Candidly, it looks like she was spurned mistress. Maybe she was entitled to be angry. I don't know.
(19) She told WaPO that “he was ‘manipulative and dishonest and misleading’ in his dealings with her and other women.”
(20) She also statd "It's not normal for a member of Congress who runs on a GOP platform of family values and conservatism to be scouring the Internet looking for a new sexual liaison.”
(21) Seriously? She had an consensual affair with a married man that extended over a significant period of time and in at least two jurisdictions. Sorry, but that doesn’t give anyone the right to do what she did, especially when it might be unlawful to do so.
(22) So is this “revenge porn”? Currently, there are no federal laws explicitly addressing revenge porn. But there is a law in TX.
(23) On September 1, 2015, Texas officially made it illegal to post private, explicit photos of another person online without that person’s consent.…
(24) According to Section 21.16 of the Texas Penal Code, this crime occurs when a person:

•Distributes or transfers photos of a person in which the subject is nude or engaged in sexual activity
•Distributes such photos without the subject’s consent
(25) •Distributes such images when the subject took them with a reasonable expectation of privacy
•Distributes such photos along with identifying personal informationof the subject
(26) A conviction on a charge of Unlawful Disclosure of Promotion of Intimate Visual Material in Texas is a Class A Misdemeanor. It is punishable by:
•Up to one year in jail
•A fine of up to $4000
(27) My review of the law would lead to my recommendation that this woman retain an attorney as soon as she can. It would appear she may have violated the TX statute. The same for anyone who distributed the images/video, and especially those who posted it.
(28) Candidly, I hope Cong. Barton pursues this further than just an investigation by the Capitol Police, especially through litigation against InfoWars.
(29) Now, is Cong. Barton a hypocrite for having an affair given his conservative stance? Perhaps. That said, it appears he doesn’t totally live in a glass house while throwing stones. And this is why:
(30) In 1998, while President Clinton was embroiled in an affair w/#MonicaLewinksy the LA Times quotes Barton as saying, "I personally don't care a fig about what he does in his bedroom with his wife or any other sexual partners he may have, but I do care if he lies under oath."
(31) Did Cong. Barton exercise poor judgment? Probably. I represent ppl all the time who acted similarly & face possible denial/revocation of security clearances as a result. Barton, however, does not have to worry about that as Members of Congress automatically hold clearances.
(32) In any event, these were consensual, private interactions. My personal opinion is I don’t care. But I will leave it to everyone else to decide their own respective individual views on the moral aspects of this situation, especially his constituents.
(END) This thread was written to focus primarily on the legal parameters of the situation. And in this case, from what we know right now (and I am more than willing to modify my views in light of new evidence that might emerge), Barton is the victim as a matter of law.
(END + 1) There is a lot more legal analysis I could do but thread would get boring! Here is the TX statute to read. Key to understand here is that (a) Barton expected privacy, (b) it was consensual & (c) video/images revealed it was him.…
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