Justices will decide whether sending sexually explicit images to teens is legal

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The Indiana Lawyer on 05/08/2017 by IL Staff

The Indiana Supreme Court has agreed to answer the question of whether sending sexually explicit photos to 16- and 17-year-olds is permissible under state law after granting transfer to a case involving that issue last week.

In its February opinion in State of Indiana v. Sameer Girish Thakar, 29S02-1705-CR-284, the Indiana Court of Appeals unanimously held that Sameer Thakar had not broken state law when he allegedly sent photos of his genitals to a 16-year-old girl in Oregon. Thakar was initially charged with a Class D felony for dissemination of matter harmful to minors, but he successfully moved to have the charging information dismissed.

In its decision, the appellate panel held that because the state of Indiana has set the age of consent for sexual activity at 16 years old, it would be “confusing for the State to permit actual sexual activity between adults and sixteen-year-olds while criminalizing the transmission of sexual images from an adult to a sixteen-year-old.” That decision was based on the Court of Appeal’s previous decision in Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009).

The high court also granted transfer to Mary Price v. Indiana Department of Child Services, 49S05-1705-PL-285, a case that will determine whether an employee of the Indiana Department of Child Services can sue her employer based on alleged violations of the state-mandated caseload maximums. The Marion Superior Court initially ruled that Mary Price, a DCS permanency worker, could not sue the department for consistently assigning her a caseload exceeding the 17-child statutory maximum, holding that she had no private right of action under the applicable state statute.

While the Indiana Court of Appeals disagreed with Price’s argument that state statute provides a private right of action, the appellate panel also held that she could prevail on the statute through the public standing doctrine as a member of the general public.

Finally, the Indiana Supreme Court agreed last week to hear the case of Justine Archer v. State of Indiana, 49S04-1705-CR-288. In that case, an appellate panel reversed a restitution order following Justine Archer’s guilty plea to auto theft as a Level 6 felony, finding that the order went beyond the evidence of the record and was an abuse of discretion under the circumstances.

All three cases will be heard by a new Indiana Supreme Court after long-time Justice Robert Rucker retires from his seat on the bench this Friday. Gov. Eric Holcomb is in the process of selecting a new justice to replace Rucker from a pool of three finalists – Clark Circuit Judge Vicki Carmichael, Wabash Superior Judge Christopher Goff and Boone Superior Judge Matthew Kincaid.

The court denied transfer to eight other cases during the week ending May 5. The full list of transfer actions can be read here.