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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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