Tuesday, March 18, 2014
The Indiana Supreme Court affirmed a conviction for child exploitation on these facts
On February 27, 2010, [defendant] Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take "upskirt" photographs of women and girls as they were shopping. After he selected a particular victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images.
Unsurprisingly, Delagrange’s unusual behavior attracted attention, and a store employee contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his camera system. Detectives later identified four girls from the recorded images: K.V., T.G., and C.B., all aged seventeen, and A.K., aged 15. Those images depicted "the area under the skirt and between the legs" of the victims, but did not depict any "uncovered genitals." Ex. at 5.
This argument did not work
...we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not.