Thursday, January 20, 2022

Revenge Porn Statute Constitutional

The Indiana Supreme Court reversed and remanded the dismissal of criminal charges

On March 12, Katz took a video of his then girlfriend R.S. performing oral sex on him without her knowledge. This occurred at Katz’s college fraternity house in Angola, Indiana. Katz sent the video to his ex-girlfriend, C.H., via Snapchat. C.H. thought R.S. was aware of the video, but a few days later, Katz told C.H. not to mention “anything about the video he sent through Snapchat” to R.S. Appellee’s App. Vol. II, p.6. C.H. then contacted R.S. to let her know what Katz sent. After C.H. informed her about the video, R.S. confronted Katz via text message. Katz admitted to sending the video and was apologetic, stating he knew it was wrong to send the video and should not have sent it without her knowledge. On March 26, R.S.’s lawyer reported the incident to the Angola Police Department. A detective spoke to both R.S. and C.H. later that day. R.S. provided the detective with the text messages of her conversations with C.H. and Katz. C.H. provided additional details, including that the video showed Katz “holding a female’s hair while her head went up and down towards [his] penis.” Id. She also told the detective that the female was clothed, and she “could not see the female’s face in the video but assumed it was [R.S.]” Id.

After charges were filed

The trial court dismissed the case because it concluded the statute was unconstitutional under Article 1, Section 9 and the First Amendment.

The court here squarely rejects the reasoning in dealing with "revenge porn"

In the face of this unique and pervasive crime, the “overwhelming majority of state legislatures have enacted laws criminalizing the nonconsensual dissemination of private sexual images.” 

Even under a strict scrutiny constitutional analysis, the statute passes muster

Faced with the widespread and growing problem of nonconsensual pornography, the legislature acted within its authority to safeguard the health and safety of its citizens from this unique and serious crime by passing Indiana Code section 35-45-4-8. The State properly charged Katz with violating the statute. And the statute does not violate either the free interchange clause of the Indiana Constitution, or the First Amendment to the United States Constitution. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

(Mike Frisch)

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