Justices order dissemination charge reinstated, overrule COA precedent

A 38-year-old man who sent an explicit photo to a 16-year-old girl must face a felony charge after the Indiana Supreme Court ruled that it is illegal for adults to send sexually explicit photos to any person under the age of 18. The high court also overruled a 2009 Court of Appeals decision that had reached the opposite conclusion.

The justices reached their decision Monday in the case of State of Indiana v. Sameer Girish Thakar, 29S02-1705-CR-284. In 2014, Sameer Girish Thakar, then 38, sent a photo of his genitals to a 16-year-old girl in Oregon. After learning about the photo, the Oregon FBI contacted the Fishers Police Department, who went to Thakar’s house and arrested him.

Thakar was charged with Class D felony dissemination of matter harmful to minors under Indiana Code 35-49-3-3(a)(1) (2008), also known as the dissemination statute. In response, Thakar moved to dismiss the charge, claiming the statute was void for vagueness and pointing to the decision in Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009) for support.

In Salter, a divided panel of the Indiana Court of Appeals determined the dissemination statute was void for vagueness as applied because the age of consent to sexual activity is 16. In a footnote to Monday’s opinion, Justice Mark Massa explained the Salter Court determined the statute was unconstitutionally vague as applied “because the activity in question would not be understood…as ‘patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors.’”

The Hamilton Superior Court agreed with Thakar’s argument, as did the Indiana Court of Appeals, which relied on Salter in its February affirmation of the dismissal of the charge. But after hearing arguments in Thakar’s case in June, the high court unanimously determined the dissemination statute is not unconstitutionally vague.

Under I.C. 35-49-1-4 (2008), a “minor” is defined as any person under the age of 18, while I.C. 35-49-2-2 (2008) defines “harmful to minors” as, among other things, something that meets the “patently offensive to prevailing standards” benchmark explored in Salter. Thakar argued that because a 16-year-old girl could see his genitals in person, the “prevailing standards” benchmark should allow him to send photos of his genitals to her as well.

But Massa wrote Thakar was merely trying to impute ambiguity into the dissemination statute by claiming the consent and dissemination statutes are in conflict with each other and should be read consistently.

“But there is no conflict between these two statutes requiring such resolution, because Thakar was capable of complying with both simultaneously; with respect to a 16-year-old, consensual sexual activity in person is permitted, the dissemination of a sexually-explicit photograph (consensually or otherwise) is not,” Massa wrote.

The justice also pointed to an element of I.C. 35-49-2-2 that describes matter as harmful if “it describes or represents…nudity, sexual conduct, (or) sexual excitement,” noting Thakar’s photo would fall into that category. But that element doesn’t work against the “patently offensive element,” he said, because it would be up to a trial court or jury to decide if something is considered patently offensive.

“Whether this inconsistent statutory treatment of minors aged 16 and 17 is advisable with respect to sexually-related activity is a matter for the legislature, and whether Thakar’s alleged conduct violated the Dissemination Statute is a matter for the jury,” he wrote.

Massa also wrote that the fact the General Assembly had taken no action in response to Salter is irrelevant, noting “’the hierarchy of interpretive principles moots the concept of legislative acquiescence.’” Thus, the high court also overturned Salter in its Monday decision.

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