ILNews

COA rules minors must be active participants to meet statute’s definition of ‘child exploitation’

Marilyn Odendahl
January 25, 2013
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A man who secretly photographed minor girls in their underwear is not guilty of child exploitation because those girls were not intentionally exhibiting themselves, a divided Indiana Court of Appeals has ruled.

David Delagrange was convicted of four counts of Class C felony attempted child exploitation after he was caught surreptitiously photographing underneath the skirts of several females, including four minors. Delagrange had outfitted his shoe with a video camera and went to Castleton Square Mall to take pictures of panties, boots, and high heels of adult women.

Delagrange appealed on the grounds the trial court erred when it denied his motion for directed verdict. He argued the charging information does not constitute crimes of attempted child exploitation.  

The COA reversed the four counts of child exploitation and remanded to the trial court for proceedings.

For its ruling in David Delagrange v. State of Indiana, 49A04-1203-CR-144, the COA turned its attention to Ind. Code 35-42-4-4(b)(1). The court focused on the definitions of “sexual conduct” and the phrase “by a child.”

The majority found “the phrasing of the statute demands the child be performing the sexual conduct, which herein required the child be exhibiting her uncovered genitals with the intent to satisfy someone’s sexual desires.” Because the state did not present any evidence that the victims intentionally exhibited themselves, the trial court should have directed a not guilty verdict.

Judge Edward Najam Jr. dissented, arguing that the phrase, “sexual conduct by a child,” does not mandate any active participation by the minor.

“...the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires,” Najam wrote. “Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children.”


 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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