2023 Indiana Code › Title 35. Criminal Law and Procedure › Article 49. Obscenity and Pornography › Chapter 3. Crimes › 35-49-3-4-b. Defense to Prosecution for Dissemination of Matter or Conducting Performance Harmful to Minors

Note: This version of section effective 1-1-2024. See also preceding version of this section, effective until 1-1-2024.
Sec. 4. (a) 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 purposes;
(2) that the matter was disseminated or displayed to or that the performance was performed before the recipient by a bona fide college, university, museum, college library, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or university library, or by an employee of such a school, college, university, museum, college library, or public library, or university library acting within the scope of the employee's employment;
(3) that the defendant had reasonable cause to believe that the minor involved was eighteen (18) years of age 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 of age or older; or
(4) that the defendant was a salesclerk, motion picture projectionist, usher, or ticket taker, acting within the scope of the defendant's employment and that the defendant had no financial interest in the place where the defendant was so employed.
(b) Except as provided in subsection (c), it is a defense to a prosecution under section 3 of this chapter if all the following apply:
(1) A cellular telephone, another wireless or cellular communications device, or a social networking web site was used to disseminate matter to a minor that is harmful to minors.
(2) The defendant is not more than four (4) years older or younger than the person who received the matter that is harmful to minors.
(3) The relationship between the defendant and the person who received the matter that is harmful to minors was a dating relationship or an ongoing personal relationship. For purposes of this subdivision, the term "ongoing personal relationship" does not include a family relationship.
(4) The crime was committed by a person less than twenty-two (22) years of age.
(5) The person receiving the matter expressly or implicitly acquiesced in the defendant's conduct.
(c) The defense to a prosecution described in subsection (b) does not apply if:
(1) the image is disseminated to a person other than the person:
(A) who sent the image; or
(B) who is depicted in the image; or
(2) the dissemination of the image violates:
(A) a protective order to prevent domestic or family violence or harassment issued under IC 34-26-5 (or, if the order involved a family or household member, under IC 34-26-2 or IC 34-4-5.1-5 before their repeal);
(B) an ex parte protective order issued under IC 34-26-5 (or, if the order involved a family or household member, an emergency order issued under IC 34-26-2 or IC 34-4-5.1 before their repeal);
(C) a workplace violence restraining order issued under IC 34-26-6;
(D) a no contact order in a dispositional decree issued under IC 31-34-20-1, IC 31-37-19-1, or IC 31-37-5-6 (or IC 31-6-4-15.4 or IC 31-6-4-15.9 before their repeal) or an order issued under IC 31-32-13 (or IC 31-6-7-14 before its repeal) that orders the person to refrain from direct or indirect contact with a child in need of services or a delinquent child;
(E) a no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion, and including a no contact order issued under IC 35-33-8-3.6;
(F) a no contact order issued as a condition of probation;
(G) a protective order to prevent domestic or family violence issued under IC 31-15-5 (or IC 31-16-5 or IC 31-1-11.5-8.2 before their repeal);
(H) a protective order to prevent domestic or family violence issued under IC 31-14-16-1 in a paternity action;
(I) a no contact order issued under IC 31-34-25 in a child in need of services proceeding or under IC 31-37-25 in a juvenile delinquency proceeding;
(J) an order issued in another state that is substantially similar to an order described in clauses (A) through (I);
(K) an order that is substantially similar to an order described in clauses (A) through (I) and is issued by an Indian:
(i) tribe;
(ii) band;
(iii) pueblo;
(iv) nation; or
(v) organized group or community, including an Alaska Native village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);
that is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians;
(L) an order issued under IC 35-33-8-3.2; or
(M) an order issued under IC 35-38-1-30
As added by P.L.311-1983, SEC.33. Amended by P.L.180-2011, SEC.4; P.L.158-2013, SEC.649; P.L.266-2019, SEC.16; P.L.234-2023, SEC.6.