"Creates a Digitized Image"

In a sense, this post is about the need for -- and difficulty of -- drafting criminal statutes that define crimes with precision while still addressing the "harm" to be outlawed,

As you may have noticed, I seldom do posts on child pornography or child exploitation cases . . . not because the “harm” involved isn’t important, but because the defendants tend to be so inept (to put it kindly) that the legal issues just aren’t novel or complex.

This post is about an Indiana defendant who appealed his conviction for child exploitation and a related charge, and won . . . by successfully challenging the substance and application of the statutes at issue. The case is Salter v. State, 2009 WL 1409484 (Indiana Court of Appeals 2009), and here are the facts that led to the charges:

In the fall of 2006, the Indianapolis Police Department received information from Delaware authorities that Salter had been having communications of a sexual nature with M.B., a girl in Delaware who was under . . . eighteen. On October 23, IPD officers obtained and executed a search warrant at Salter's house. . . . [They] seized computer towers, CDs, DVDs . . . and miscellaneous documents. Upon searching . . . two of the CDs, officers discovered thirty-eight images of M.B., fully or partially nude, eight images of other nude `prepubescent’ children, and five images of Salter's genitals. In addition, Delaware State Police found the images of Salter's genitals on M.B.'s computer.

State v. Salter, supra. Salter was charged with 46 counts of child exploitation plus 5 counts of disseminating matter harmful to minors. The child exploitation charges were brought under Indiana Code § 35-42-4-4(b)(1), which provides as follows:

A person who knowingly or intentionally . . ., 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 . . . commits child exploitation, a Class C felony.

The disseminating material harmful to minors charge was brought under Indiana Code § 35-49-3-3((a)(1), which provides as follows: “[A] person who knowingly or intentionally . . . disseminates matter to minors that is harmful to minors . . . commits a Class D felony.” To constitute material harmful to minors, the material disseminated must (i) be obscene, (ii) be child pornography or (iii) the person who sent the material must have sent it to “ a child less than eighteen (18) years of age believing of intending that the recipient is a child less than eighteen (18) years of age.” Indiana Code § 34-49-3-3(b).

Salter was tried by a judge, not a jury, and convicted on 35 of the 46 counts. The counts he was convicted of included both child exploitation and disseminating material harmful to minors. State v. Salter, supra. As I may have mentioned, defense attorneys often go with a bench trial (trial by a judge) instead of a jury trial when the charges involve issues a jury is likely to find distasteful and the defense is based primarily on legal issues. My guess is that this is why Salter went with a bench trial, instead of a jury trial.

On appeal, Salter challenged the legal sufficiency of the charges under both statutes. That means he isn’t challenging the facts; instead, he’s basically saying, “even if I did what you claim I did, it wasn’t a crime” (or maybe, more precisely, “it wasn’t the crime you charged me with”). If the charge is invalid, then the conviction can’t stand.

As to the child exploitation charge, Salter argued that “the State's attempt to include downloading an electronic image and saving it on a CD in the definition of `creates a digitized image’ exceeds the permissible scope of the child exploitation statute.” State v. Salter, supra. In response, the prosecution argued that “a person who uses a computer to download an electronic image and save it on a CD `creates a digitized image’ as that phrase is used in Indiana Code subsection 35-42-4-4(b).” State v. Salter, supra.

In deciding which argument was correct, the Court of Appeals reviewed the history of Indiana Code § 35-42-4-4(b). The version of the statute that was originally adopted in 1978 created only one crime, which it defined as follows: “A person who knowingly or intentionally photographs, films, or videotapes a child under sixteen (16) years of age while the child is performing or submitting to” sexual intercourse or other sexual activity “commits child exploitation, a Class D felony.” The Court of Appeals noted that the current version of the statute creates two crimes: child exploitation (which is defined above); and possession of child pornography. State v. Salter, supra. The court found that the legislature’s addition of the second offense indicated that it had “for good reason, decided to punish the production and distribution of child pornography more broadly -- extending to matter portraying sixteen and seventeen year olds -- and more severely -- Class C felony -- than mere possession of child pornography, which concerns only children under sixteen and is a Class D felony.” State v. Salter, supra.

The Court of Appeals then looked at two cases from other states – a New Jersey case and a Maryland case – that dealt with essentially the same issue. Both of those courts held that “a person who prints an image from a computer or who downloads an image onto a computer does not `create’ the image. The image was already created. All the person is doing is saving a copy of the image.” The Indiana Court of Appeals therefore reached the same conclusion in the Salter case, noting that someone

who opens an e-mail and saves an attached picture to his computer or a CD `creates’ something. He `creates’ a new unit of data on the computer or a file on a CD that was not there before. But is that what our legislature meant by `creates a digitized image of’?

To answer that question, we need look no further than the original statute, which was written to punish the photographing, the filming, and the videotaping of sexual activity involving a child. . . . [T]his was . . . aimed at eliminating the initial creation of these images, i.e., the original act of recording. Until the late 1990s, the only way to do so was to use a camera along with film or tape. But. . .`modern digital cameras do not use any kind of film, but record real-life images directly in digital form.’ . . . Because people who digitally record a performance or incident are not technically photographing, filming, or videotaping, our legislature acted to close a possible loophole for users of modern digital devices. As technology evolved, so did the statute. . . .

[T]he aim of statutes like ours . . . is the same: to stop the creation of child pornography. Here, Salter did not `create’ any of the images underlying Counts 1-46; M.B. created the thirty-eight pictures of herself, and some unknown person created the eight images of the other children before they were posted on the nudist websites visited by Salter. By downloading the images . . . and burning them onto CDs, Salter only saved copies of them, i.e., he possessed them.

Salter v. State, supra. The Court of Appeals therefore reversed Salter’s convictions on the child exploitation counts. It also addressed the possibility of charging him with possession of child pornography:

As for the images of M.B., he has committed no crime. The State concedes M.B. was sixteen when she took the pictures of herself, and Indiana's possession of child pornography statute only extends to children under sixteen. . . . The children in the other eight images all appear to be under sixteen, but the State might implicate Indiana's Successive Prosecution Statute if it chooses to charge Salter with possession of child pornography based on those images. . . .

State v. Salter, supra. As to the 8 images of children that appear to be under 16, the court is saying that the State probably has a double jeopardy problem here, i.e., it prosecuted him for SOME crimes based on those images, and that probably means he cannot be prosecuted for other crimes based on the same images.

Finally, Salter argued that the charges for disseminating material harmful to minors were void for vagueness and therefore unconstitutional. As the Court of Appeals explained, under the constitutional guarantee of due process established by the 14th Amendment,

a penal statute is void for vagueness if it does not clearly define its prohibitions. . . . A penal statute must give a person of ordinary intelligence fair notice that his . . . conduct is forbidden so no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

State v. Salter, supra. Salter’s argument here was based on this Indiana statute: “A person at least eighteen . . . who, with a child . . . less than sixteen . . ., performs or submits to sexual intercourse commits” what is usually known as statutory rape. Indiana Code § 35-42-4-9(a). Salter did not deny

that he disseminated or displayed `matter’ to M.B. or that M.B. was a `minor’ for purposes of the statute. Rather, he contends that `[n]o person of ordinary intelligence would think that he could legally have sexual relations with another person, but could not send that same person an electronic image of his genitals. 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.

State v. Salter, supra. The Court of Appeals agreed:

Such sexual activity could involve varying degrees of nudity and necessarily involves some exposure of the genitals. 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’ . . . for M.B.? . . . [I]f 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? These questions reveal the flaw in Indiana Code section 35-49-3-3 as applied to Salter: it did not provide him with fair notice that the State would consider pictures of his genitals harmful to or unsuitable for a sixteen-year-old girl.

State v. Salter, supra. The Court of Appeals therefore reversed the convictions on the disseminating material harmful to minors charges, as well.