In Indiana, it a now clearly crime to send (disseminate) matter harmful to “minors”.1 In 2009, this statute was held unconstitutional because the age of consent to sexual activity was 16.2 The legal reasoning was if one can consent to sexual activity at 16, one can receive nude photos.
In the recent Thaker case, Mr. Thaker sent an explicit photo of his genitals to a 16-year-old girl in Oregon. After learning about the photo, the FBI contacted the Indiana police department, who proceeded to go to him and arrest him.
Mr. Thaker was charged with a Class D felony dissemination3 of matter harmful to minors under the penal act. Thaker’s lawyer, who was aware of the Salter case, moved to dismiss the charge, which was then granted. The Court of Appeals again agreed.
On transfer, the Indiana Supreme Court reversed and sent Thaker’s case back for trial. The reasoning is the controlling definition of “minor”. This term is expressly defined as any person under the age of 18. Among other things, the Supreme Court noted any statutory inconsistent treatment between the definition of “minors” and “consent” is a matter for the legislature.
Thus, it is key to understand the laws that may land you in criminal trouble. Moreover, as this case shows, a criminal defense attorney may wind up getting the case dismissed for a variety of reasons. Criminal laws are strictly construed so that a person has to have noticed the act they are committing (or omitting) is criminal. The criminal laws are strictly construed because they may result in a loss of freedom.
There are three key takeaways from this blog post. First, if you do not know if your conduct it illegal, you should seek advice from a criminal defense counsel. Sex, drug, gun, and domestic violence crimes are treated harshly by our society because of their grave consequences for everyone.
Second, seasoned criminal defense counsel will be aware of the thousands of criminal acts that may apply and know how to craft a defense, such as Mr. Thacker’s initial dismissal of the case. Ignorance of the law, as the old adage goes, “is no excuse.”
Third, this case demonstrates that criminal law, like so many other areas of law, is responsive to the focus of society, but this creates complexities that may provide a viable defense or a better plea. Choose counsel wisely.
Ciyou & Dixon, P.C. advocates practice criminal defense throughout the state, as well as handle criminal appeals. This blog post is written by Ciyou & Dixon, P.C. attorneys, but is not a solicitation for representation or legal advice. It is an advertisement.
- Indiana Code section 35-49-1-4.
- Salter v. State, 906 N.E.2d 212 (Ind.Ct.App.2009).
- Criminal acts are now referenced as numbers, 1 through 6.