Indiana Child Pornography Laws

Code Sections

Indiana Code Title 35 Criminal Law & Procedure: Articles 42 - Offenses Against the Person and 49 Obscenity and Pornography

What is Prohibited?

The specific forms of child pornography and sexual contact or solicitation of children that are prohibited are described below by the code section on child pornography:

• 35-42-4-4: Child exploitation by knowingly creating, selling, sending, or presenting materials showing sexual conduct or showing the genitals or breasts of children under 18 whether in person or on a computer, a Level 5 felony. Possession of child pornography by knowingly having pictures or films of depicting sexual conduct by a child under 18 that lacks a literary, scientific, or educational reason, a Level 6 felony.
• 35-49-3-1: Sale, distribution or exhibition of child pornography showing sexual conduct of children or adults appearing to be under 18 is a Level 6 felony, whereas selling pornography with adults over 18 is a Class A misdemeanor.
• 35-49-3-2: Knowingly showing, managing, presenting photos or films of an "obscene performance" (average person applying contemporary standards finds the performance offensive, sexual, and lacking literary, artistic, scientific, or political value) of children under 18 is a Level 6 felony, of adults it's a Class A misdemeanor.
• 35-49-3-3: Dissemination of matter or conducting performance harmful to minors is essentially showing or giving porn to minors or sexual performances in front of minors that appeals to their interest in sex, a Level 6 felony.

Other possible charges, especially for the creators of child pornography in Indiana, include:

• 35-42-3.5-1: Sexual trafficking of a minor under 18 by an adult 18 or older who knowingly sells or sends a child for prostitution or other sexual conduct, a Level 2 felony.
• 35-42-4-3: Child Molesting by having sex or other sexual contact with a child under 14 years old. While it’s usually a Level 3 felony, it's a Level 1 (highest) felony if person committing it is over 21 or there were weapons, serious injury, or date rape drugs involved. Similarly, for fondling or touching a child under 14, usually it’s a Level 4 felony. It's a Level 2 if the same aggravating factors are present.
• 35-42-4-5: Sexual conduct in presence of a minor when an adult 18 or older knowingly causes a 14 or 15-year-old child to touch himself or herself for the adult's sexual pleasure it’s a Level 5 felony. However, if the child is under 14, it's a Level 4 felony. If force, weapons, or incapacity is involved, it's a Level 3 felony.

Penalty

Penalties for child pornography in Indiana vary depending on the conduct committed and age of the victim. Below are sentencing ranges for the applicable felonies and misdemeanor levels.

• Level 1 Felony - 20-40 years incarceration and a fine of up to $10,000
• Level 2 Felony - 10-30 years incarceration and a fine of up to $10,000 (sexual trafficking of a minor)
• Level 3 Felony - 3-16 years incarceration and a fine of up to $10,000
• Level 4 Felony - 2-12 years incarceration and a fine of up to $10,000
• Level 5 Felony - 1-6 years incarceration and a fine up to $10,000 (child exploitation)
• Level 6 Felony - 6 months to 2.5 years incarceration and a fine up to $10,000 (possession of child porn, sale of child porn)
• Class A Misdemeanor - up to 1 year incarceration and a fine of up to $5,000 (sale of adult porn)

Note: On July 1, 2014 Indiana criminal law changed from classifying felonies as Classes A-D to Levels 1-6 as described above. Some individuals, literature, or websites may still refer to the old system. Contact an experienced Indiana criminal defense lawyer for up to date information.

Defenses

Much like statutory rape laws, consent is no defense to child pornography charges as the child wasn't of the age to consent to the sexual conduct and its distribution. However, innocence, insanity, the material being for educational or another valuable purpose, and other defenses may apply.

Indiana also created specific "sexting" defenses under Indiana Code Sections 34-42-4-4 and 35-49-3-4. Since July 1, 2014 it's a defense to having or disseminating child pornography if the defendant is less than 22 years old, less than 4 years older than the child depicted, they're in a dating or personal relationship, and the alleged victim consented to this behavior. This defense doesn't apply when the defendant shares the photo or film with others.