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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.