Here's another case dealing with exhibiting harmful matter to a minor. In Salter v. State, 2009 WL 1409484 , the Indiana Court of Appeals overturned such a conviction on the ground that the statute was vague as applied to pictures sent over the Internet to a young woman of 16. The court reasoned that since the state set the age of sexual consent at 16, the "harmful matter" statute failed to provide clear notice to the defendant that he could legally have sex with the woman but could not legally send her pictures of his erect penis.
We understand Salter's argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree.One judge dissented, noting that the defendant didn't have a sexual relationship with the young woman involved, and that the harmful matter statute did not depend on a minor's consent. But given that the young woman here sent the defendant semi-nude pictures of herself as well, it seems fair to say that there was some kind of consensual sexual relationship here, albeit an online one. It would be truly bizarre if it were legal for two people of whatever age to have sex, but illegal for them to have cybersex. I am aware, however, that in the eyes of many people over 35, anything involving the Internet is automatically twice as dangerous.
...By setting the legal age of consent at sixteen, 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. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if 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?
(N.B. - the court's opinion makes no mention of the defendant's age.)
Though originally nabbed because of this online relationship with a teenager, Mr. Salter was also charged with something even more unsavory: possession of child pornography. This included not just the pictures of the 16-year-old created and sent by her, but also pictures of unknown, younger children apparently obtained from the Internet. Mr. Salter was clearly liable for possession of the latter (but not the former, because Indiana sets the age for defining child pornography at the age of sexual consent, 16). But the prosecutor decided to go for a bigger sentence by charging him with creating child pornography, on the basis of his downloading the images and burning them to CD. The court (again 2-1) following the reasoning of the New Jersey Supreme Court (State v. Sisler) in concluding that simply copying preexisting digital images does not fall within the ambit of a statute targeted at the actual production of child pornography. The court reasoned that copying a digital images is analogous to simple possession, not to creating a new image.
The court therefore reversed these convictions as well. It noted that the state could not prosecute Salter for simple possession as to the images of the 16 year old regardless, and might have screwed itself out of charging him with possession of the other images because of the state's Successive Prosecution Statute. Which hopefully will teach that prosecutor a lesson.