There are two, possibly conflicting, statutes at play in a case now under consideration by the Indiana Supreme Court in a case involving an explicit photo sent to a teen – one that sets the age of consent for sexual activity at 16 years old, and one that prohibits the dissemination of matter “harmful to minors” to any minor under the age of 18.
According to counsel for Sameer Girish Thakar, a perceived statutory vagueness is the reason a felony case against Thakar should not be allowed to proceed. Thakar was charged with Class D felony dissemination of matter harmful to minors after he sent a photo of his genitals to a 16-year-old girl in Oregon. However, the trial court dismissed the charge, and the Indiana Court of Appeals affirmed, finding that because the age of consent for sexual activity in Indiana is 16 years old, it would be “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.”
But according to Deputy Attorney General Ellen Meilaender, who argued before the court Tuesday on behalf of the state, Indiana Code 35-49-3-3 is not vague at all. The statute holds that dissemination of harmful matter is a Level 6 felony if the person distributing the matter believes or intends for the recipient to be under the age of 18. Thus, because Thakar knew the girl in question was 16, his conduct falls under the prohibited activity in I.C. 35-49-3-3, she said.
Further, Thakar’s argument is based on false premises, including a premise that suggests that by not criminalizing sexual activity between adults and 16- and 17-year-olds, the Legislature was “affirmatively agreeing” that such conduct is suitable at that age. Instead, Meilaender said it was “perfectly rational” for lawmakers to want to protect 16- and 17-year-olds from exposure to sexually obscene materials, as such materials could negatively impact their view of healthy sexual relationships.
But Jane Ruemmele, counsel for Thakar, suggested I.C. 35-49-3-3 must be read in tandem with I.C. 35-49-2-2, which holds that matter is harmful if “it is patently offensive to prevailing standards in the adult community.” Thus, the statute is vague as applied, Ruemmele said, because the definition of “harmful” matters goes beyond obscenity and falls into the realm of exposure to genitalia – exposure that is implicit in the sexual activity legally permitted between adults and 16- and 17-year-olds in Indiana. A similar conclusion was reached in the case of Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009), which the Court of Appeals relied on in affirming the dismissal of Thakar’s charge.
Chief Justice Loretta Rush told Ruemmele she was struggling to find the purported statutory ambiguity, especially considering there is not a consent element to receiving harmful matter. Pressed by both Rush and Justice Steve David to explicitly state the ambiguity, Ruemmele pointed to the phrase “patently offensive,” which she said can go beyond child pornography and obscenity and attempt to punish “mere nudity.”
But Meilaender told the court the state has adopted the test in Miller v. California, 413 U.S. 15 (1973), to define matter that is harmful to minors, and that test has been upheld as constitutional. The question of whether this matter meets the definition under that test is one for the jury, she said, urging the justices to allow Thakar’s case to proceed to trial.
Full oral arguments in the case of State of Indiana v. Sameer Girish Thakar, 29S02-1705-CR-00284, can be viewed here.