Citations Affected: IC 34-24; IC 35-42; IC 35-49; noncode.
Synopsis: Child pornography. Permits forfeiture of equipment used in
preparing or disseminating child pornography or material harmful to
minors. Prohibits making available to another person a computer
containing material harmful to minors. Raises the penalty for child
exploitation from a Class D felony to a Class C felony. Specifies that
the laws concerning child exploitation, possession of child
pornography, and obscenity and pornography apply to digitized images.
Excludes from dissemination of matter harmful to minors material sent
over the internet, unless the matter is obscene, is child pornography, or
was deliberately sent to a child the sender knows to be less than 18
years of age.
Effective: July 1, 2001.
January 9, 2001, read first time and referred to Committee on Corrections, Criminal and
February 1, 2001, reported favorably _ Do Pass.
February 5, 2001, read second time, ordered engrossed.
February 6, 2001, engrossed. Read third time, passed. Yeas 49, nays 0.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
SECTION 1. IC 34-24-1-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. (a) The following
may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following:
(A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:
(i) Dealing in cocaine or narcotic drug (IC 35-48-4-1).
(ii) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
(iii) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(iv) Dealing in a schedule V controlled substance (IC 35-48-4-4).
defined by IC 35-45-6-1) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in IC 35-45-13-6) and plans, instructions, or publications used to commit an offense under IC 35-45-13.
(10) Any equipment used or intended for use in the preparing, photographing, recording, videotaping, digitizing, printing, copying, or dissemination of matter in violation of IC 35-42-4-4.
(b) A vehicle used by any person as a common or contract carrier in the transaction of business as a common or contract carrier is not subject to seizure under this section, unless it can be proven by a preponderance of the evidence that the owner of the vehicle knowingly permitted the vehicle to be used to engage in conduct that subjects it to seizure under subsection (a).
(c) Money, negotiable instruments, securities, weapons, communications devices, or any property commonly used as consideration for a violation of IC 35-48-4 found near or on a person who is committing, attempting to commit, or conspiring to commit any of the following offenses shall be admitted into evidence in an action under this chapter as prima facie evidence that the money, negotiable instrument, security, or other thing of value is property that has been used or was to have been used to facilitate the violation of a criminal statute or is the proceeds of the violation of a criminal statute:
(1) IC 35-48-4-1 (dealing in cocaine or narcotic drug).
(2) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled substance).
(3) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
(4) IC 35-48-4-4 (dealing in a schedule V controlled substance) as a Class B felony.
(5) IC 35-48-4-6 (possession of cocaine or narcotic drug) as a Class A felony, Class B felony, or Class C felony.
(6) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as a Class C felony.
SECTION 2. IC 35-42-4-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 4. (a) As used in this section:
"Disseminate" means to transfer possession for free or for a consideration.
"Matter" has the same meaning as in IC 35-49-1-3.
"Performance" has the same meaning as in IC 35-49-1-7.
"Sexual conduct" means sexual intercourse, deviate sexual conduct,
exhibition of the uncovered genitals intended to satisfy or arouse the
sexual desires of any person, sado-masochistic abuse, sexual
intercourse or deviate sexual conduct with an animal, or 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
(b) A person who knowingly or intentionally:
(1) manages, produces, sponsors, presents, exhibits, photographs, films,
or videotapes, or creates a digitized image of any
performance or incident that includes sexual conduct by a child
under eighteen (18) years of age; or
(2) 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; or
(3) 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;
commits child exploitation, a
Class D Class C felony. However, the
offense is a Class C felony if it is committed by using a computer
network (as defined in IC 35-43-2-3(a)).
(c) A person who knowingly or intentionally possesses:
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
that depicts or describes sexual conduct by a child who is less than sixteen (16) years of age, or appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political, or scientific value commits possession of child pornography, a Class A misdemeanor.
(d) Subsections (b) and (c) 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 are for
legitimate scientific or educational purposes.
SECTION 3. IC 35-49-1-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 3. "Matter" means:
(1) any book, magazine, newspaper, or other printed or written material;
(2) any picture, drawing, photograph, motion picture, digitized image, or other pictorial representation;
(3) any statue or other figure;
(4) any recording, transcription, or mechanical, chemical, or electrical reproduction; or
(5) any other articles, equipment, machines, or materials.
SECTION 4. IC 35-49-3-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 3. (a) Except as provided in subsection (b), a person who knowingly or intentionally:
(1) disseminates matter to minors that is harmful to minors;
(2) displays matter that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by his parent or guardian;
(3) sells or displays for sale to any person matter that is harmful to minors within five hundred (500) feet of the nearest property line of a school or church;
(4) engages in or conducts a performance before minors that is harmful to minors;
(5) engages in or conducts a performance that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by his parent or guardian;
(6) misrepresents his age for the purpose of obtaining admission to an area from which minors are restricted because of the display of matter or a performance that is harmful to minors; or
(7) misrepresents that he is a parent or guardian of a minor for the purpose of obtaining admission of the minor to an area where minors are being restricted because of display of matter or performance that is harmful to minors;
commits a Class D felony.
(b) This section does not apply if a person disseminates, displays, or otherwise makes available the matter described in subsection (a) through the Internet, computer electronic transfer, or a computer network, unless:
(1) the matter is obscene under IC 35-49-2-1;
(2) the matter is child pornography under IC 35-42-4-4; or
(3) the person distributes the matter to a child less than
eighteen (18) years of age knowing that the recipient is a child
less than eighteen (18) years of age.
SECTION 5. [EFFECTIVE JULY 1, 2001] IC 35-42-4-4, IC 35-49-1-3, and IC 35-49-3-3, all as amended by this act, apply only to crimes committed after June 30, 2001.