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At Stark Law Offices we are experienced Sex Crime Attorneys with decades of criminal procedure experience in both State and Federal court. Whether accusations against you or a loved one involve an Indiana arrest for soliciatation or prostitution to a Federal prosecution for internet pornography or child solicitation, we know how to help you.
IC 35-49
ARTICLE 49. OBSCENITY AND PORNOGRAPHY
IC 35-49-1
Chapter 1. Definitions
IC 35-49-1-1
Definitions applicable throughout article
Sec. 1. The definitions in this chapter apply throughout this
article.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-2
"Distribute"
Sec. 2. "Distribute" means to transfer possession for a
consideration.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-3
"Matter"
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.
As added by P.L.311-1983, SEC.33. Amended by P.L.3-2002, SEC.3.
IC 35-49-1-4
"Minor"
Sec. 4. "Minor" means any individual under the age of eighteen
(18) years.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-5
"Nudity"
Sec. 5. "Nudity" means:
(1) the showing of the human male or female genitals, pubic
area, or buttocks with less than a full opaque covering;
(2) the showing of the female breast with less than a fully
opaque covering of any part of the nipple; or
(3) the depiction of covered male genitals in a discernibly
turgid
state.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-6
"Owner"
Sec. 6. "Owner" means any person who owns or has legal right to
possession of any matter.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-7
"Performance"
Sec. 7. "Performance" means any play, motion picture, dance, or
other exhibition or presentation, whether pictured, animated, or
live,
performed before an audience of one (1) or more persons.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-8
"Sado-masochistic abuse"
Sec. 8. "Sado-masochistic abuse" means flagellation or torture
by
or upon a person as an act of sexual stimulation or
gratification.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-9
"Sexual conduct"
Sec. 9. "Sexual conduct" means:
(1) sexual intercourse or deviate sexual conduct;
(2) exhibition of the uncovered genitals in the context of
masturbation or other sexual activity;
(3) exhibition of the uncovered genitals of a person under
sixteen (16) years of age;
(4) sado-masochistic abuse; or
(5) sexual intercourse or deviate sexual conduct with an animal.
As added by P.L.311-1983, SEC.33.
IC 35-49-1-10
"Sexual excitement"
Sec. 10. "Sexual excitement" means the condition of human male
or female genitals when in a state of sexual stimulation or
arousal.
As added by P.L.311-1983, SEC.33.
IC 35-49-2
Chapter 2. General Provisions
IC 35-49-2-1
Obscene matter or performance
Sec. 1. A matter or performance is obscene for purposes of this
article if:
(1) the average person, applying contemporary community
standards, finds that the dominant theme of the matter or
performance, taken as a whole, appeals to the prurient interest
in sex;
(2) the matter or performance depicts or describes, in a
patently
offensive way, sexual conduct; and
(3) the matter or performance, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
As added by P.L.311-1983, SEC.33.
IC 35-49-2-2
Matter or performance harmful to minors
Sec. 2. A matter or performance is harmful to minors for
purposes
of this article if:
(1) it describes or represents, in any form, nudity, sexual
conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest
in
sex of minors;
(3) it is patently offensive to prevailing standards in the
adult
community as a whole with respect to what is suitable matter
for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic,
political, or scientific value for minors.
As added by P.L.311-1983, SEC.33.
IC 35-49-2-3
Arrest; search; seizure of matter; motion pictures
Sec. 3. (a) Whenever a person:
(1) offers matter for distribution to the public as
stock-in-trade
of a lawful business or activity; or
(2) exhibits matter at a commercial theater showing regularly
scheduled performances to the general public;
the person may be arrested under this article only if the
arresting
officer has first obtained an arrest warrant, and matter may be
seized
as evidence only if a search warrant has first been obtained.
(b) The quantity of matter seized may encompass no more than is
reasonable and necessary for the purpose of obtaining evidence.
(c) If:
(1) the subject of a seizure under this chapter is a motion
picture
that is allegedly harmful to minors; and
(2) the defendant or owner of the motion picture proves that
other copies of the motion picture are not available for
exhibition;
the court shall order that the defendant or owner may, at his
own
expense, copy the motion picture and continue showing the motion
picture to adults pending a preliminary determination under
section
4(b) of this chapter.
As added by P.L.311-1983, SEC.33.
IC 35-49-2-4
Adversary hearing; application; preliminary determination
Sec. 4. (a) Within ten (10) days after:
(1) matter is obtained by seizure or by purchase under this
article; or
(2) the defendant is arrested under this article;
whichever is later, and before trial, the state, the defendant,
an
owner, or any other party in interest of any matter seized or
purchased may apply for and obtain a prompt adversary hearing
for
the purpose described in subsection (b).
(b) At the adversary hearing, the court shall make a preliminary
determination of whether the matter is:
(1) probably obscene; or
(2) probably harmful to minors.
As added by P.L.311-1983, SEC.33.
IC 35-49-2-5
Application of article
Sec. 5. This article does not limit the power of political
subdivisions to adopt or enforce zoning ordinances regulating
the use
of real property.
As added by P.L.311-1983, SEC.33.
IC 35-49-3
Chapter 3. Crimes
IC 35-49-3-1
Sale, distribution, or exhibition of obscene matter
Sec. 1. A person who knowingly or intentionally:
(1) sends or brings into Indiana obscene matter for sale or
distribution; or
(2) offers to distribute, distributes, or exhibits to another
person
obscene matter;
commits a Class A misdemeanor. However, the offense is a Class D
felony if the obscene matter depicts or describes sexual conduct
involving any person who is or appears to be under sixteen (16)
years
of age.
As added by P.L.311-1983, SEC.33.
IC 35-49-3-2
Obscene performance
Sec. 2. A person who knowingly or intentionally engages in,
participates in, manages, produces, sponsors, presents,
exhibits,
photographs, films, or videotapes any obscene performance
commits
a Class A misdemeanor. However, the offense is a Class D felony
if
the obscene performance depicts or describes sexual conduct
involving any person who is or appears to be under sixteen (16)
years
of age.
As added by P.L.311-1983, SEC.33.
IC 35-49-3-3
Dissemination of matter or conducting performance harmful to
minors
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 the minor's parent or guardian;
(3) sells, rents, or displays for sale or rent 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 the
minor's parent or guardian;
(6) misrepresents the minor's 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 the person 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 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 believing or intending that the recipient is a
child less than eighteen (18) years of age.
As added by P.L.311-1983, SEC.33. Amended by P.L.59-1995,
SEC.4; P.L.3-2002, SEC.4; P.L.140-2006, SEC.35.
IC 35-49-3-4
Defense to prosecution for dissemination of matter or conducting
performance harmful to minors
Sec. 4. It is a defense to a prosecution under section 3 of this
chapter for the defendant to show:
(1) that the matter was disseminated or that the performance
was performed for legitimate scientific or educational purposes;
(2) that the matter was disseminated or displayed to or that the
performance was performed before the recipient by a bona fide
school, museum, or public library that qualifies for certain
property tax exemptions under IC 6-1.1-10, or by an employee
of such a school, museum, or public library acting within the
scope of his employment;
(3) that he had reasonable cause to believe that the minor
involved was eighteen (18) years old or older and that the minor
exhibited to the defendant a draft card, driver's license, birth
certificate, or other official or apparently official document
purporting to establish that the minor was eighteen (18) years
old or older; or
(4) that he was a salesclerk, motion picture projectionist,
usher,
or ticket taker, acting within the scope of his employment and
that he had no financial interest in the place where he was so
employed.
As added by P.L.311-1983, SEC.33. |
