I.C. 35-45-4-6 is a new law to address sexting and other images of children, effective July 1, 2014, that is already causing some confusion amongst the lawyers who are going to be actually dealing with it in criminal and juvenile court. As a presenter from the Indiana Judicial Center pointed out to the Commission on Improving the Status of Children, the law appears in the criminal code, but may be interpreted to actually be a status offense and not a crime because it only applies to persons less than eighteen years old. If it is a status offense, an adjudication cannot result in secure detention or placement at the Indiana Department of Correction.
According to one deputy prosecutor, the Indiana Prosecuting Attorneys Council presented I.C. 35-45-4-6 more as an affirmative defense to the other sexting or pornographic image crimes, rather than a new crime or status offense. In support of that argument, this has the same type of “Romeo and Juliet” defense language that has been applied within the Sexual Misconduct with a Minor statute at I.C. 35-42-4-9(e) for accused who are not more than four years older than the juvenile alleged victim, are in a dating relationship, and the alleged victim consented to the act.
The Indiana Public Defender Council has not yet had its conference to discuss the new legislation, and their position is unknown at this time.
Here is the new law:
(a) This section applies only to a person to whom all of the following apply:
(1) The person is less than eighteen (18) years of age.
(2) The person is not more than four (4) years older than the individual who is depicted in the image or who received the image.
(3) The relationship between the person and the individual who received the image or who is depicted in the image was a dating relationship or an ongoing personal relationship. For purposes of this subdivision, the term “ongoing personal relationship” does not include a family relationship.
(4) The individual receiving the image or who is depicted in the image acquiesced in the person’s conduct.
(b) The following definitions apply throughout this section:
(1) “Disseminate” means to transfer possession for no direct or indirect consideration.
(2) “Matter” has the meaning set forth in IC 35-49-1-3.
(3) “Performance” has the meaning set forth in IC 35-49-1-7.
(4) “Sexual conduct” means sexual intercourse, other sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or other sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.
(c) A person who, on or by means of a cellular telephone, social media web site, or another wireless or cellular communications device, knowingly or intentionally:
(1) produces, presents, exhibits, photographs, records, or creates a digitized image of any performance or incident that includes sexual conduct by a child at least twelve (12) years of age;
(2) disseminates, exhibits to another person, or offers to disseminate or exhibit to another person, matter that depicts or describes sexual conduct by a child at least twelve (12) years of age; or
(A) a picture;
(B) a drawing;
(C) a photograph;
(D) a motion picture;
(E) a digitized image; or
(F) any pictorial representation;
that depicts or describes sexual conduct by a child at least twelve (12) years of age who the person knows is less than sixteen (16) years of age or who appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political, or scientific value;
commits indecent display by a youth, a Class A misdemeanor.
(d) Subsection (c) does not apply to a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or to an employee of that school, museum, or public library acting within the scope of the employee’s employment when the possession of the listed materials is for legitimate scientific or educational purposes.