EDITOR'S NOTE: Dan King is an advocate for Young Voices and a journalist residing in Arlington, Virginia. He writes about free speech, mass surveillance, civil liberties and LGBT issues. He can be found on Twitter @Kinger_Liberty.
There’s an old saying, “you can look, but you can’t touch,” but apparently in Indiana it’s exactly the opposite.
The court’s ruling comes from the case of an Indiana high school teacher who sent “at least one” nude photo of himself to a 16-year-old girl in Oregon via Skype in 2014. A lower court had thrown out the charges against the teacher, Sameer Thakar, pointing out the inconsistencies in Indiana’s laws. However, the Supreme Court took up the case when the prosecutors appealed the lower court decision.
Thakar, who was 38 at the time of the sexting, admitted to the FBI when they arrived at his home that he knew the girl was 16, but said he “couldn’t remember” her age when he sent the sexual images to her. There is no indication that Thakar received any photos from the girl in return.
Writing the opinion for the Supreme Court’s unanimous ruling, Justice Mark Massa acknowledged the state’s sex and sexting laws are “inconsistent,” with one another, but said that dealing with that inconsistency “is a matter for the legislature.”
“The Dissemination Statute clearly protects minors under the age of 18 from the dissemination of matter harmful to them,” Massa said. Indiana’s Dissemination Law makes it illegal for anyone to possess or knowingly disseminate any depiction of sexual conduct by a minor under the age of 18. It also makes it illegal for anyone to send a minor any material that would be “harmful” to them.
Democratic lawmakers in Indiana have tried, and failed, in the past to raise the age of consent for sex to 18. Indiana is not the only state that has a lower age of consent for sex than for sexting. In Texas, it is legal to have sex with a 17-year-old, but illegal to possess photos of that same 17-year-old. A teacher in the Lone Star State faces 20 years in prison for possessing nude pictures of his 17-year-old girlfriend, and just like Thakar, he would face no charges at all if he actually had sex with the girl.
With the Supreme Court overruling the lower court, Thakar’s case will now go to trial. If he is found guilty of the Class D felony charge for dissemination of matter harmful to minors, he could face a three year prison sentence.
The paradoxical nature of these laws is simply baffling. If a person is responsible enough to consent to sex, then certainly they must too be responsible enough to decide whether or not to send nudes.
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