COA: Dirty pictures allowed by Legislature

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Revisiting the question of whether sending sexually explicit photographs to a 16- or 17-year-old is permitted under state law, the Indiana Court of Appeals upheld its earlier ruling by finding the Legislature’s inaction to amend the statute implies dirty pictures are suitable for these teens.

S.G.T. was charged with a Class D felony for dissemination of matter harmful to minors after he allegedly sent an electronic photo of his genitals to a 16-year-old girl in Oregon. He successfully moved to get the charging information dismissed on the grounds that the statute criminalizing dissemination of matter harmful to minors is unconstitutionally vague.

Key to S.G.T.’s argument was the decision by the Court of Appeals in a nearly identical case, Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009).

Salter split the appellate panel with the majority asserting the Legislature has made no distinction between Indiana’s age of consent at 16 years of age and dissemination of harmful material.

According to the majority’s opinion in Salter, “the Indiana legislature has made an implied policy choice that in-person viewing of another person’s genitals is ‘suitable matter’ for a sixteen- or seventeen-year-old child. … [I]f such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity?”

Judge Nancy Vaidik, now chief judge, dissented, in Salter. She argued even though the Legislature has not criminalized sex between adults and 16- and 17-year-olds, that does not mean that sending sexually suggestive pictures to a minor is suitable.

In State of Indiana v. S.G.T. 29A02-1606-CR-1265, the Court of Appeals was not swayed by the dissent in Salter.

The unanimous appellate panel noted the state made no attempt to show that S.G.T. is different from Salter. Instead, the state contended it is logical to distinguish between an adult have sexual intercourse with a 16-year-old and an adult sending suggestive material to a 16-year-old.

The Court of Appeals disagreed and, again, pointed to the inaction by the Legislature to make any distinction.

“Regardless of whether the legislature could choose to make such a distinction as the State claims should exist, the fact remains, that it did not expressly do so. And without clearly stating such a distinction, we believe the dissemination of harmful matter statute is vague, ambiguous, and must be construed against the State,” Judge Michael Barnes wrote. “Without some clear statement by the legislature to the contrary, we conclude reasonable persons would find it confusing for the State to permit actual sexual activity between adults and sixteen year olds while criminalizing the transmission of sexual images from an adult to a sixteen-year-old.”

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