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Judges disagree on statute's constitutionality

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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."

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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