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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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