82 N.E.3d 257
Ind.2017Background
- In 2014 Sameer Thakar (age 38) sent a photograph of his erect penis via online chat to L.S., a 16‑year‑old in Oregon; he later admitted sending the photo to police.
- Indiana charged Thakar with Class D felony dissemination of matter harmful to minors under Ind. Code § 35‑49‑3‑3(a)(1) (2008).
- Thakar moved to dismiss, arguing the statute was void for vagueness as applied, relying on Salter v. State (which held similar conduct not proscribable because a 16‑year‑old can consent to sexual activity in Indiana).
- The trial court dismissed the charge; the Court of Appeals affirmed based on Salter; the Indiana Supreme Court granted transfer.
- The Supreme Court considered whether the Dissemination Statute gives fair notice and whether Salter was correctly decided.
- The Court overruled Salter, held the Dissemination Statute is not unconstitutionally vague as applied, reversed the dismissal, and remanded for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dissemination Statute is unconstitutionally vague as applied | State: statute plainly prohibits knowingly disseminating matter harmful to minors under 18 | Thakar: Salter—because a 16‑year‑old can consent to sexual activity, sending a photo of an erect penis cannot be proscribed as "harmful" under community standards | Statute is not vague; Salter overruled; statute covers dissemination of explicit material to minors under 18 |
| Whether apparent conflict between age‑of‑consent statute and dissemination statute renders the latter ambiguous | State: no conflict—consensual in‑person sex and dissemination of sexually explicit images are distinct and both can lawfully coexist | Thakar: inconsistent treatment makes dissemination ambiguous as applied to 16‑ and 17‑year‑olds | No conflict; courts may not rewrite policy; legislature may address any disparity |
| Whether an erect‑penis photo falls within statutory elements of "harmful to minors" | State: explicit image falls within "nudity/sexual conduct/sexual excitement" element and is for jury to adjudicate offensiveness | Thakar: if in‑person exposure to a 16‑year‑old can be lawful, a photo should likewise be non‑harmful, creating ambiguity | Image fits statutory definitions; offensiveness (element 3) is a factual issue for the jury |
| Whether legislative acquiescence to Salter affects interpretation | State: clear statutory text controls; alleged legislative inaction is irrelevant | Thakar: Legislature did not amend statute after Salter, implying acquiescence | Court rejects acquiescence argument; interpret clear text as written |
Key Cases Cited
- Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009) (Court of Appeals held dissemination statute void as applied where recipient was 16)
- Tiplick v. State, 43 N.E.3d 1259 (Ind. 2015) (presumption of constitutionality and vagueness standards)
- State v. Zerbe, 50 N.E.3d 368 (Ind. 2016) (distinguishing facial and as‑applied constitutional challenges)
- Lewis v. State, 726 N.E.2d 836 (Ind. Ct. App. 2000) (community‑standards offensiveness is a question for the jury)
- Jackson v. State, 50 N.E.3d 767 (Ind. 2016) (plain statutory language controls over arguments of legislative acquiescence)