Ind. Code § 35-42-4-4 : CRIMINAL LAW AND PROCEDURE — OFFENSES AGAINST THE PERSON — SEX CRIMES —42-4-4 - Child exploitation; possession of child pornography; exemptions; defenses

(a) The following definitions apply throughout this section:

(1) "Disseminate" means to transfer possession for free or for a consideration.

(2) "Image" means the following:

(A) A picture.

(B) A drawing.

(C) A photograph.

(D) A negative image.

(E) An undeveloped film.

(F) A motion picture.

(G) A videotape.

(H) A digitized image.

(I) A computer generated image.

(J) Any pictorial representation.

(3) "Matter" has the same meaning as in IC 35-49-1-3.

(4) "Performance" has the same meaning as in IC 35-49-1-7.

(5) "Sexual conduct" means:

(A) sexual intercourse;

(B) other sexual conduct (as defined in IC 35-31.5-2-221.5);

(C) exhibition of the:

(i) uncovered genitals; or

(ii) female breast with less than a fully opaque covering of any part of the nipple;

intended to satisfy or arouse the sexual desires of any person;

(D) sadomasochistic abuse;

(E) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with an animal; or

(F) any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.

(b) A person who:

(1) knowingly or intentionally manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age;

(2) knowingly or intentionally disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age;

(3) knowingly or intentionally makes available to another person a computer, knowing that the computer's fixed drive or peripheral device contains matter that depicts or describes sexual conduct by a child less than eighteen (18) years of age;

(4) with the intent to satisfy or arouse the sexual desires of any person:

(A) knowingly or intentionally:

(i) manages;

(ii) produces;

(iii) sponsors;

(iv) presents;

(v) exhibits;

(vi) photographs;

(vii) films;

(viii) videotapes; or

(ix) creates a digitized image of;

any performance or incident that includes the uncovered genitals of a child less than eighteen (18) years of age or the exhibition of the female breast with less than a fully opaque covering of any part of the nipple by a child less than eighteen (18) years of age;

(B) knowingly or intentionally:

(i) disseminates to another person;

(ii) exhibits to another person;

(iii) offers to disseminate or exhibit to another person; or

(iv) sends or brings into Indiana for dissemination or exhibition;

matter that depicts the uncovered genitals of a child less than eighteen (18) years of age or the exhibition of the female breast with less than a fully opaque covering of any part of the nipple by a child less than eighteen (18) years of age; or

(C) makes available to another person a computer, knowing that the computer's fixed drive or peripheral device contains matter that depicts the uncovered genitals of a child less than eighteen (18) years of age or the exhibition of the female breast with less than a fully opaque covering of any part of the nipple by a child less than eighteen (18) years of age; or

(5) knowingly or intentionally produces, disseminates, or possesses with intent to disseminate an image that depicts or describes sexual conduct:

(A) by a child who the person knows is less than eighteen (18) years of age;

(B) by a child less than eighteen (18) years of age, or by a person who appears to be a child less than eighteen (18) years of age, if the image is obscene (as described in IC 35-49-2-1); or

(C) that is simulated sexual conduct involving a representation that appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1);

commits child exploitation, a Level 5 felony. It is not a required element of an offense under subdivision (5)(C) that the child depicted actually exists.

(c) However, the offense of child exploitation described in subsection (b) is a Level 4 felony if:

(1) the sexual conduct, matter, performance, or incident depicts or describes a child less than eighteen (18) years of age who:

(A) engages in bestiality (as described in IC 35-46-3-14);

(B) is mentally disabled or deficient;

(C) participates in the sexual conduct, matter, performance, or incident by use of force or the threat of force;

(D) physically or verbally resists participating in the sexual conduct, matter, performance, or incident;

(E) receives a bodily injury while participating in the sexual conduct, matter, performance, or incident; or

(F) is less than twelve (12) years of age; or

(2) the child less than eighteen (18) years of age:

(A) engages in bestiality (as described in IC 35-46-3-14);

(B) is mentally disabled or deficient;

(C) participates in the sexual conduct, matter, performance, or incident by use of force or the threat of force;

(D) physically or verbally resists participating in the sexual conduct, matter, performance, or incident;

(E) receives a bodily injury while participating in the sexual conduct, matter, performance, or incident; or

(F) is less than twelve (12) years of age.

(d) A person who, with intent to view the image, knowingly or intentionally possesses or accesses an image that depicts or describes sexual conduct:

(1) by a child who the person knows is less than eighteen (18) years of age;

(2) by a child less than eighteen (18) years of age, or by a person who appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1); or

(3) that is simulated sexual conduct involving a representation that appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1);

commits possession of child pornography, a Level 6 felony. It is not a required element of an offense under subdivision (3) that the child depicted actually exists.

(e) However, the offense of possession of child pornography described in subsection (d) is a Level 5 felony if:

(1) the sexual conduct, matter, performance, or incident depicts or describes a child who the person knows is less than eighteen (18) years of age, or who appears to be less than eighteen (18) years of age, who:

(A) engages in bestiality (as described in IC 35-46-3-14);

(B) is mentally disabled or deficient;

(C) participates in the sexual conduct, matter, performance, or incident by use of force or the threat of force;

(D) physically or verbally resists participating in the sexual conduct, matter, performance, or incident;

(E) receives a bodily injury while participating in the sexual conduct, matter, performance, or incident; or

(F) is less than twelve (12) years of age; or

(2) the child less than eighteen (18) years of age:

(A) engages in bestiality (as described in IC 35-46-3-14);

(B) is mentally disabled or deficient;

(C) participates in the sexual conduct, matter, performance, or incident by use of force or the threat of force;

(D) physically or verbally resists participating in the sexual conduct, matter, performance, or incident;

(E) receives a bodily injury while participating in the sexual conduct, matter, performance, or incident; or

(F) is less than twelve (12) years of age.

(f) Subsections (b), (c), (d), and (e) do not apply to a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or to an employee of such a school, museum, or public library acting within the scope of the employee's employment when the possession of the listed materials is for legitimate scientific or educational purposes.

(g) It is a defense to a prosecution under this section that:

(1) the person is a school employee, a department of child services employee, or an attorney acting in the attorney's capacity as legal counsel for a client; and

(2) the acts constituting the elements of the offense were performed solely within the scope of the person's employment as a school employee, a department of child services employee, or an attorney acting in the attorney's capacity as legal counsel for a client.

(h) Except as provided in subsection (i), it is a defense to a prosecution under subsection (b), (c), (d), or (e) if all of the following apply:

(1) A cellular telephone, another wireless or cellular communications device, or a social networking web site was used to possess, produce, or disseminate the image.

(2) The defendant is not more than four (4) years older or younger than the person who is depicted in the image or who received the image.

(3) The relationship between the defendant and the person who received the image or who is depicted in the image was a dating relationship or an ongoing personal relationship. For purposes of this subdivision, the term "ongoing personal relationship" does not include a family relationship.

(4) The crime was committed by a person less than twenty-two (22) years of age.

(5) The person receiving the image or who is depicted in the image acquiesced in the defendant's conduct.

(i) The defense to a prosecution described in subsection (h) does not apply if:

(1) the person who receives the image disseminates it to a person other than the person:

(A) who sent the image; or

(B) who is depicted in the image;

(2) the image is of a person other than the person who sent the image or received the image; or

(3) the dissemination of the image violates:

(A) a protective order to prevent domestic or family violence or harassment issued under IC 34-26-5 (or, if the order involved a family or household member, under IC 34-26-2 or IC 34-4-5.1-5 before their repeal);

(B) an ex parte protective order issued under IC 34-26-5 (or, if the order involved a family or household member, an emergency order issued under IC 34-26-2 or IC 34-4-5.1 before their repeal);

(C) a workplace violence restraining order issued under IC 34-26-6;

(D) a no contact order in a dispositional decree issued under IC 31-34-20-1, IC 31-37-19-1, or IC 31-37-5-6 (or IC 31-6-4-15.4 or IC 31-6-4-15.9 before their repeal) or an order issued under IC 31-32-13 (or IC 31-6-7-14 before its repeal) that orders the person to refrain from direct or indirect contact with a child in need of services or a delinquent child;

(E) a no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion, and including a no contact order issued under IC 35-33-8-3.6;

(F) a no contact order issued as a condition of probation;

(G) a protective order to prevent domestic or family violence issued under IC 31-15-5 (or IC 31-16-5 or IC 31-1-11.5-8.2 before their repeal);

(H) a protective order to prevent domestic or family violence issued under IC 31-14-16-1 in a paternity action;

(I) a no contact order issued under IC 31-34-25 in a child in need of services proceeding or under IC 31-37-25 in a juvenile delinquency proceeding;

(J) an order issued in another state that is substantially similar to an order described in clauses (A) through (I);

(K) an order that is substantially similar to an order described in clauses (A) through (I) and is issued by an Indian:

(i) tribe;

(ii) band;

(iii) pueblo;

(iv) nation; or

(v) organized group or community, including an Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq.);

that is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians;

(L) an order issued under IC 35-33-8-3.2; or

(M) an order issued under IC 35-38-1-30.

(j) It is a defense to a prosecution under this section that:

(1) the person was less than eighteen (18) years of age at the time the alleged offense was committed; and

(2) the circumstances described in IC 35-45-4-6(a)(2) through IC 35-45-4-6(a)(4) apply.

(k) A person is entitled to present the defense described in subsection (j) in a pretrial hearing. If a person proves by a preponderance of the evidence in a pretrial hearing that the defense described in subsection (j) applies, the court shall dismiss the charges under this section with prejudice.

IC 35-42-4-4

Amended by P.L. 172-2022,SEC. 14, eff. 7/1/2022.

Amended by P.L. 105-2022,SEC. 47, eff. 7/1/2022.

Amended by P.L. 266-2019,SEC. 13, eff. 7/1/2019.

Amended by P.L. 132-2017,SEC. 1, eff. 7/1/2017.

Amended by P.L. 13-2016, SEC. 15, eff. 7/1/2016.

Amended by P.L. 80-2015, SEC. 1, eff. 7/1/2015.

Amended by P.L. 168-2014, SEC. 69, eff. 7/1/2014.

Amended by P.L. 158-2013, SEC. 440, eff. 7/1/2014.

Amended by P.L. 214-2013, SEC. 38, eff. 7/1/2013.

Amended by P.L. 181-2013, SEC. 1, eff. 5/7/2013.

Amended by P.L. 6-2012, SEC. 226, eff. 2/22/2012.

Amended by P.L. 180-2011, SEC. 3, eff. 7/1/2011.

As added by Acts1978 , P.L. 148, SEC.5. Amended by P.L. 325-1983, SEC.1; P.L. 206-1986, SEC.1; P.L. 37-1990, SEC.25; P.L. 59-1995, SEC.3; P.L. 216-1996, SEC.19; P.L. 3-2002, SEC.2; P.L. 216-2007, SEC.43.

This section is set out more than once due to postponed, multiple, or conflicting amendments.