ILNews

Judges disagree on statute's constitutionality

Back to TopCommentsE-mailPrintBookmark and Share

In an issue with great relevance given today's advances in technology and social networking, the Indiana Court of Appeals concluded someone who uses a computer to download an electronic image and save it on a CD doesn't "create" a digitalized image under the child-exploitation statute. The majority also held the dissemination of matter harmful to minors statute is unconstitutionally vague as applied to the defendant's conduct.

In Herbert W. Salter v. State of Indiana, No. 49A02-0808-CR-672, Herbert Salter appealed his 40 convictions of child exploitation as Class C felonies and five convictions of dissemination of matter harmful to minors as Class D felonies. Salter had been communicating with a 16-year-old girl from Delaware and received dozens of images from her of her naked or partially nude. Police also found images of nude children Salter downloaded from a nudist Web site and five images of his genitals, which he had sent to the girl.

At trial, Salter moved to have the counts dismissed, arguing the child exploitation and dissemination of matter harmful to minors statutes are unconstitutionally vague as applied to him. The trial court denied the motions and convicted him on all counts.

The Court of Appeals judges' unanimously agreed with Salter's argument on appeal that defining a person who uses a computer to download an electronic image and save it on a CD "creates a digitized image" exceeds the permissible scope of the child-exploitation statute. The judges examined Indiana Code Section 35-42-4-4, its history, and cases from New Jersey and Maryland to conclude a person who prints an image from a computer or who downloads it onto a computer doesn't "create" the image but just saves a copy of it, wrote Judge Patricia Riley. The Indiana statute is clearly aimed at people who create original images or who disseminate, show, or offer to show or send matter depicting or describing sexual conduct by a child under 16 years of age.

The state argued that the addition of the language "creates a digitized image of" to 35-42-4-4(b)(1) expands criminal liability to include a person who saves an electronic copy of a picture, even if only for personal gratification.

"With the advent of Facebook, MySpace, and websites dedicated to picture storage, such as Shutterfly and Snapfish, computer storage of pictures grows more common every day," wrote the judge. "To punish someone who saves electronic images on a CD but not someone who stores paper pictures in a filing cabinet would be to ignore the realities of modern American society."

Regardless of the language used, Salter didn't "create" any of the images underlying his child exploitation convictions, and by downloading them and burning them onto CDs, he only possessed the images. And because the girl was 16 when she took the photos, Salter can't be charged with possession of child pornography because the statute only extends to children younger than 16, wrote Judge Riley.

The appellate court left it to the state to evaluate the possibility of charging him with possession of child pornography based on the images downloaded from the nudist Web site.

The majority also agreed with Salter that I.C. Section 34-49-3-3, the dissemination of matter harmful to minors statute, was unconstitutionally vague as applied to him. Indiana has an age of consent of 16-years-old, which means if the girl was in Indiana, she could consent to sexual activity with Salter; the statute in question defines minors as anyone under the age of 18. The majority found Salter had no way of knowing that sending pictures of his genitals to the girl would be considered harmful because under Indiana law, he could have been naked in front of her and had sex with her without violating a law, wrote Judge Riley. The statute doesn't give a person of ordinary intelligence fair notice that sending a picture of his or her genitals to a 16-year-old is forbidden. This issue questions why images like this are harmful to 16- and 17-year-olds when the legislature also allows them to view the same material in person during the course of sexual activity, the judge wrote.

Judge Riley also noted that because of the reversal of the number of convictions Salter faced, the appellate court recognized its decision will inspire opposition, but that should be voiced to the legislature and not the courts.

Judge Nancy Vaidik concurred with her colleagues in reversing Salter's child exploitation convictions, but believed his convictions of dissemination should stand. She doesn't believe the statute is vague, and it lists a minor as anyone under the age of 18 for purposes of the statute.

"Just because our legislature has decided not to criminalize adults having sex with sixteen and seventeen year olds does not mean that the legislature cannot enact a separate statute that protects all minors from harmful matter, including pictures of genitals," she wrote. "The fact that Salter may, hypothetically, have sex with a consenting sixteen year old does not change the fact that our legislature has decided to criminalize disseminating or displaying matter that is harmful to all minors, regardless of whether they have consented to receiving such matter."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT