Another criminal charge amended during the state legislature’s past session is the prohibition of “Unlawful Photography,” found under TCA § 39-16-605. The law previously criminalized the action of photographing someone only if 1) the person in the photograph would be offended/embarrassed and 2) the person who took the photo did so for the purpose of “sexual arousal or gratification.”
In 2021, a Franklin County student was recorded inside a restroom stall at his school, and the video was subsequently spread amongst the student body. The incident spurred investigation into whether criminal charges could be filed against the photographer, and it was found that the law mentioned above was too specific in requiring that second element of sexual gratification.
In response, the state legislature has passed HB 2459, which added the following language to the crime:
HB 2459 / SB 2362 / Pub. Ch. 920:
(a) It is an offense…if the photograph:
(2) (A) Includes the unclothed intimate area of the individual and would be
considered offensive or embarrassing by the individual;
(B) Was taken for the purpose of offending, intimidating, embarrassing, ridiculing,
or harassing the victim; and
(C) Was disseminated by the defendant, the defendant threatened to disseminate
the photograph, or the defendant permitted the dissemination of the
photograph, to another person.
The original section, (a)(1), that deals with the “sexual gratification” element remains in the law as a Class A misdemeanor. The newer addition, (a)(2), that focuses on ridicule or harassment, is a Class B misdemeanor.
With the proliferation of camera phones and the world wide acceptance of social media platforms, these cases are becoming more and more common particularly when people believe the images or videos will disappear. “Disappearing apps” are often a misnomer and lead to people getting into trouble. Good rule of thumb both legally and personally is to keep your phone in your pocket in any compromising situation.