Criminal Defense Lawyer Fort Wayne - Sex Crime - Prostitution and Pornography

Indiana Defense of Criminal Prostitution Charges

Indiana attempts to criminalize prostitution on multiple fronts – it imposes penalties for those accused of selling, buying, and promoting prostitution. The state aggressively prosecutes allegations regarding all three aspects of prostitution. A charge under any of these related laws can carry serious, life-altering consequences. If you find yourself charged with any of these offenses you should seek the assistance of a seasoned Fort Wayne Criminal Defense Lawyer. Having an aggressive defense attorney at your side at the beginning of your case may help you reach a more favorable outcome later on.

Prostitution Under Indiana Law

Ind. Code § 35-45-4-2 defines prostitution as knowingly or intentionally, for money or other property:

• Performing, or offering or agreeing to perform, sexual intercourse or other sexual conduct (which includes oral or anal sex, or penetration with an object); or

• Fondling, or offering or agreeing to fondle, the genitals of another person.

Under the code, prostitution is considered a Class A misdemeanor, unless the offender has two prior convictions for prostitution, at which point it is considered a Level 6 felony. Class A misdemeanors are punishable with up to one year of imprisonment and a fine not exceeding $5,000. With respect to Level 6 felonies, these are punishable by up to two and a half years of imprisonment and a fine not exceeding $10,000 as provided by Ind. Code § 35-50-2-7.

Patronizing and Promoting Institution

Indiana also criminalizes patronizing and promoting prostitution. Pursuant to Ind. Code § 35-45-4-3, a person is guilty of patronizing a prostitute if he or she knowingly or intentionally pays, of offers or agrees to pay, money or other property to another person:

• For past or future engagement in sexual intercourse or other sexual conduct with the paying person or any other person; or

• For having fondled, or on the understanding that the other person will fondle, the genitals of a paying person or any other person

Similar to the crime of prostitution, the crime of patronizing prostitution is a Class A misdemeanor, unless the offender has two prior conviction for the same offense, at which point the crime is a Level 6 felony.

Also, under Ind. Code § 35-45-4-4 the state prohibits individuals from any conduct that seeks to promote prostitution. This covers:

Enticing or compelling another person to become a prostitute;

• Procuring or offering or agreeing to procure a person for another for the purpose of prostitution;

• Having control over the use of a place and permitting another person to use the place for prostitution;

• Receiving money or other property from a prostitute without lawful consideration, knowing it was earned in whole or in part from prostitution; or

• Conduction or directing another person to place for the purpose of prostitution.

A conviction for promoting prostitution is a Level 5 felony punishable by a possible prison term of between one and six years, and a fine not exceeding $10,000, as provided by Ind. Code § 35-50-2-6. However, if the individual enticed or compelled is less than eighteen years old, it is a Level 4 felony punishable by a prison term lasting between two and twelve years and a fine not exceeding $10,000.

Is Filming Pornography Legal in Indiana

The short answer to this question is: Yes

While Indiana has no law prohibiting the production of pornography (assuming all performers are at least 18 years of age), it is possible that a zealous prosecutor could argue that, if the performers were actually paid, they were committing prostitution. Of course a Fort Wayne Criminal Defense Lawyer would counter that the payment was for "acting" rather than for sex, and therefore protected by the First Amendment. This is what the actual Indian Code states:

Indiana Code TITLE 35. CRIMINAL LAW AND PROCEDURE ARTICLE 49. OBSCENITY AND PORNOGRAPHY CHAPTER 3. CRIMES

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, exhibits to another person obscene matter;

commits a Class A misdemeanor. However, the offense is a Level 6 felony if the obscene matter depicts or describes sexual conduct involving any person who is or appears to be under eighteen (18) years of age. IN Code § 35-49-3-1 (2019)

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 Level 6 felony if the obscene performance depicts or describes sexual conduct involving any person who is or appears to be under eighteen (18) years of age. IN Code § 35-49-3-2 (2019)

Defense to Prosecution for Dissemination of Matter or Conduction Performance Harmful to Minors

IC 35-49-3-4 Defense to prosecution for dissemination of matter or conducting performance harmful to minors

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 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 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.

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