Child Pornography in Texas: The Line Between Art & Illegality

If you’ve paid attention to the news lately, you may have seen the controversy surrounding the Sally Mann exhibition at the Modern Art Museum in Fort Worth. Mann is one of the most famous photographers of her generation, but some elected officials have suggested some images in her Diaries of Home exhibition depicting nude children constitute child pornography.

A formal complaint has been filed, prompting an investigation by local law enforcement, and the images have reportedly been secured as potential evidence. This raises the question: When does child nudity cross the line into child pornography or obscenity under Texas and federal law? Should parents, for example, be wary of photographing their child in the bathtub or streaking outside in the sprinklers?

In this article, the criminal defense attorneys at Varghese Summersett explain child pornography laws at the state and federal levels, as well as obscenity laws, as they pertain to child nudity, photography, and art. As you will learn, the law between legality and criminality can sometimes be thin, especially when it comes to art and freedom of expression.

Understanding Child Pornography in Texas

Under Texas and federal law, child pornography includes any visual depiction of sexually explicit conduct involving a minor (under 18), including photographs, videos, digital images, or other material intended to sexually arouse or exploit.

Specifically, under Section 43.26 of the Texas Penal Code, a person commits “possession or promotion of child pornography” if he or she:

• knowingly or intentionally possess or accesses with intent to view visual material that depicts a child younger than 18 years of age at the time the image was made, who is engaging in sexual conduct; and
• the person knows the visual material depicts a child younger than 18 years of age.

Possession or promotion of child pornography in Texas is a serious felony. The punishment depends on the number of visual depictions of a child. For example, possession of 500 or more visual depictions is a first-degree felony, punishable by up to life in prison. Possession of fewer than 100 visual depictions is a third-degree felony punishable by up to 10 years in prison in Texas.

“Sexual Conduct:” The Key Element for Texas Child Porn

Under Texas law, for an image or video to be considered child pornography (referred to in the statute as “visual material”), the child must be shown engaging in “sexual conduct.” Mere nudity, such as a non-sexual photo of a naked child, is not considered child pornography.

However, if the image depicts a child engaging in or simulating sexual acts—or a lewd exhibition of genitals or private parts — that is considered child pornography in Texas.

The definition of “sexual conduct” can be found in Section 43.25 of the Texas Penal Code and includes.

• Sexual contact
• Actual or simulated sexual intercourse
• Deviate sexual intercourse
• Sexual bestiality
• Masturbation
• Sado-masochistic abuse
• Lewd exhibition of the genitals, anus, or female breast below the top of the areola
• Simulated sexual acts

So, if a photo or video simply shows a child who is nude but not in a sexually explicit or lewd position, it would usually not be covered by the child pornography statute. On the other hand, if the image appears to be focused on sexual aspects—for example, it’s intended to sexually arouse—it could very well be illegal.

Understanding Texas Obscenity Law

Obscenity laws in Texas are designed to regulate material that goes beyond the limits of societal decency, protecting community standards while balancing constitutional freedoms. However, the line between what is deemed obscene and what is protected expression can often be murky, especially when it involves sensitive topics such as child nudity. Here’s a look at Texas obscenity law and how it could potentially apply to photography and art.

Under Texas Penal Code 43.22, a person commits “obscene display or distribution” if he or she:

• intentionally or knowingly displays or distributes an obscene photograph, drawing or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution.

Obscene display or distribution is a Class C misdemeanor in Texas, punishable by up to a $500 fine (a ticket).

The Key Elements for Obscenity

Under Texas law, specifically Section 43.21 of the Penal Code, for material to be considered obscene, it must:

1. Appeal to the Prurient Interest: The material, taken as a whole, must appeal to an unhealthy or abnormal interest in sex. This is determined by evaluating the material through the lens of an average person applying contemporary community standards.
2. Depict or Describe Patently Offensive Conduct: The material must graphically depict or describe sexual conduct in a way that is blatantly offensive under current societal norms. This often includes representations of sexual acts, lewd exhibitions, or other explicit content.
3. Lack Serious Value: The material, taken as a whole, must lack serious literary, artistic, political, or scientific value. This part of the definition is often pivotal in cases involving art, as courts may find that a piece with genuine artistic or educational merit is not obscene, even if it contains nudity or explicit imagery.

The key issue with art, such as Sally Mann’s Diaries of Home exhibition, is whether the work meets the legal definition of obscenity. While the images may depict nude children, they must also be evaluated in context. If the images are deemed to have serious artistic value and do not appeal to prurient interests or depict patently offensive sexual conduct, they are generally protected under the First Amendment.

In contrast, if an image lacks artistic, educational, or other serious value and is intended to arouse or exploit, it could be classified as obscene under Texas law. This distinction is crucial in understanding why some materials may spark controversy but not legal action, while others, including museum exhibits, result in charges.

Obscenity vs. Child Pornography in Texas

Now that we’ve examined obscenity and child pornography in Texas, let’s explore the distinctions between these two areas and how they intersect.

Mere Nudity vs. Sexual Conduct
Under Texas law, simple nudity, such as a non-sexual image of a child, does not automatically constitute either child pornography or obscenity. Child pornography in Texas requires a depiction of sexual conduct or a lewd exhibition, while obscenity laws target material that goes beyond nudity and is explicitly sexual or exploitative.

Obscenity Standards
For material to be considered obscene, it must meet specific criteria under both U.S. Supreme Court precedent (the Miller test) and Texas law. The material must:
1. Appeal to a Prurient Interest: Be intended to provoke an unhealthy or excessive interest in sex.
2. Depict Sexual Conduct Offensively: Show sexual acts or lewd exhibitions in a blatantly offensive way.
3. Lack Serious Value: Have no serious literary, artistic, political, or scientific merit when viewed as a whole.

In the context of art, works that have clear artistic, historical, or educational value are generally protected under the First Amendment, even if they depict nudity. And while the law provides protections for legitimate art, the interpretation of what constitutes “sexual conduct” or “artistic value” can vary and be subjective.

Federal Child Pornography and Obscenity Laws

Federal laws governing child pornography and obscenity are designed to protect minors from exploitation and the public from exposure to offensive material. Here’s an overview of how these laws apply to nude photographs of children and the distinctions between them.

Federal Child Pornography Law (18 U.S.C. § 2252)

Federal child pornography laws are stringent, with severe penalties for producing, distributing, receiving, or possessing visual depictions of minors (under 18) engaging in sexually explicit conduct. Unlike obscenity laws, these statutes focus on protecting children rather than shielding audiences from offensive material.

Sexually Explicit Conduct
Federal child pornography laws define this broadly. The material does not need to meet the legal definition of “obscenity” to be criminalized.

• Even if a work has “serious artistic value,” it can still violate federal law if it visually depicts a child engaged in sexually explicit conduct.

Obscenity Laws and the Miller Test
Obscenity laws, guided by the Supreme Court’s decision in Miller v. California, aim to protect the public from offensive sexual material. To determine whether material is obscene, courts apply a three-part test:

1. Prurient Interest: Would an average person, using contemporary community standards, find that the material appeals to an unhealthy or morbid interest in sex
2. Patently Offensive: Does the work depict or describe sexual conduct in a way that is blatantly offensive?
3. Lacks Serious Value: Does the material lack serious literary, artistic, political, or scientific value when considered as a whole?

Nudity vs. Lewd or Lascivious Depictions

Under federal law, mere nudity does not automatically qualify as child pornography. However, courts evaluate whether a depiction is “lewd” or “lascivious” using a set of guidelines known as the Dost factors, derived from United States v. Dost. These factors help determine whether a nude image of a child crosses the line into illegality:

• Focal Point: Is the focus on the child’s genital area?
• Sexually Suggestive Setting: Does the pose or setting imply sexual activity
• Unnatural Pose or Inappropriate Attire: Is the child positioned unnaturally or wearing clothing inappropriate for their age?
• Partial or Full Nudity: How much of the child’s body is revealed?
• Sexual Coyness or Willingness: Does the image suggest a willingness to engage in sexual activity?
• Intended Sexual Response: Is the image intended to elicit a sexual reaction in the viewer?

These factors are not rigid rules but guidelines. Courts evaluate the overall context and effect of the image when determining its legality. If there is uncertainty about a specific image or situation, consult an attorney for guidance.

Should Parents be Concerned about Taking Nude Pictures of their Children?

For parents, taking photographs of their children in innocent, non-sexualized contexts—such as during bath time or playing outside—is generally not illegal under Texas or federal law. However, distributing such images, especially on social media, could lead to unintended scrutiny. The law typically distinguishes between personal family photos and material that could be interpreted as exploitative or intended to arouse.

Balancing Art, Expression, and Legal Boundaries

The debate surrounding the Sally Mann exhibition underscores the challenges of navigating obscenity and child pornography laws, particularly when art and expression are involved. Whether an image is deemed illegal depends on its context, intent, and overall purpose. Both artists and parents must exercise caution and consider how their material might be perceived.

If you are facing accusations of obscenity or child pornography in Texas, the criminal defense attorneys at Varghese Summersett can help. Call 817-203-2220 today.