Crime to Send Certain "Crude, Vulgar, and Degrading" Sexual Jokes to 16-/17-Year-Olds in Indiana

But it's just fine to have sex with them.

From Judge Randall Shepard's majority opinion in Chapman v. State, decided today:

In this interlocutory appeal, Cory Chapman appeals the trial court's preliminary determination that the matter he allegedly disseminated to a former student via text messages is probably harmful to minors. We affirm.

Chapman was previously Student's band director. Following his resignation, Chapman allegedly sent her messages telling her he loved her and missed her. He also sent Student numerous memes via text message that involved sexual jokes, including [see the exhibits -EV]:

• A picture of the clothed buttocks of three females with the words "Netflix adaptation," "Anime," and "Manga"
• A picture of a woman's face and bare shoulder with the words "When I see someone displaying positivity" … "Oh f**k yeah spread it"
• A picture of a straw hovering above the lid of a cup that has no hole and the words "When she likes you but only as a friend"

• A picture of a chalkboard with the title "Anime Tiddies Pros and Cons" and a list in the Pros column containing "Big AF," "2D," "Jiggle Physics," "On ur waifu," "No effort required"
• A picture of a cartoon character with white liquid on its stomach and the caption "When he taking his sweet ass time getting the cum rag"
• A picture of Spiderman with the caption "A teen boy's body changes & he discovers he can shoot a white sticky liquid out of his body"
• Two pictures of a woman holding a chalkboard – in one picture the chalkboard states "Moms should get a fast pass to the front of the line at coffee shops. Honey, you're 22 & slept 10 hours last night? Get to the back of the line" – in the second picture the chalkboard states "Moms should wait in line like everybody else. You're not special because you let somebody cum inside you"
• A list stating "Make her p***y wet not her eyes," "Make his d**k hard not his life," "Break her bed not her heart," "Play with her boobs not her feelings," and "Get on his d**k not his nerves"
• A text stating "Day 26 without sex: threw the neighbors' cat in the pool just so I can tell the homies I got some p***y wet over the weekend."
• A text stating "Day 147 without sex: ate fruit gushers so I could feel something squirt in my mouth"
• A text stating "Day 42559 without sex: got hit by a car and said: 'You know I can take it harder'"

After the memes were disclosed by Student, the State charged Chapman with disseminating matter harmful to minors, a Level 6 felony. Pursuant to Indiana Code section 35-49-2-4 (1983), Chapman then moved for a preliminary determination of whether the matter involved in the memes is probably harmful to minors. Following a hearing, the trial court determined that the matter involved is "probably harmful to minors." …

The State has charged Chapman with knowingly or intentionally disseminating matter that is harmful to minors [in that] …:

(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;

(2) considered as a whole, it appeals to the prurient interest in sex of minors;

(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for minors; and

(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.

Following a hearing pursuant to Section 35-49-2-4 at which copies of the memes were admitted into evidence, the trial court subsequently ruled that pursuant to the criteria listed in Section 35-49-2-2, the memes are matter that is probably harmful to minors.

We caution that the pre-trial preliminary determination under Section 35-49-2-4 is just that—preliminary. As such, it does not require conclusive proof or proof beyond a reasonable doubt of the criteria listed in Section 35-49-2-2. Further, on appeal, we generally review interlocutory orders for an abuse of discretion. An abuse of discretion occurs when the court's decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law….

 

While we agree the memes do not show any nudity or sado-masochistic abuse, the same cannot be said of sexual conduct or sexual excitement. "Sexual conduct" is defined as:

sexual intercourse, acts involving the sex organ of one person and the mouth or anus of another, the penetration of the sex organ or anus of a person by an object, the exhibition of uncovered genitals in the context of masturbation or other sexual activity, the exhibition of the uncovered genitals of a person under the age of sixteen, or sexual intercourse or other sexual conduct with an animal.

"Sexual excitement" is the condition of human genitals in a state of sexual stimulation or arousal.

Section 35-49-2-2(1) does not require explicit depiction of the acts or condition defined in these statutes. Instead, it allows for these acts and/or condition to be described or represented in any form. "Describe" is defined as "to represent or give an account of in words" and "to represent by a figure, model, or picture." To "represent" is "to bring clearly before the mind"; "to serve as a sign or symbol of"; "to portray"; and "depict." When these words are combined with the phrase "in any form," Subsection (1) encompasses anything that causes an image in the mind, serves as a sign or symbol, represents a figure, model, or picture, or constitutes a portrayal of sexual conduct or sexual excitement. Accordingly, almost all, if not all, the memes here can be said to describe or represent sexual conduct or sexual excitement….

The parties agree that the term "prurient" refers to that which is "marked by or arousing an immoderate or unwholesome interest or desire," especially sexual desire. Chapman argues the memes are simply humorous and do not fit this definition. Yet, the memes all suggest or use explicit language to refer to sexual activities or sexual situations in crude, vulgar, and degrading terms. Thus, we conclude that the trial court fairly determined that the memes appeal to the prurient interest in sex of minors….

Regarding [patent offensiveness], Chapman contends the court's determination is erroneous because of the widespread availability of the memes on social media platforms to which minors have access. However, widespread availability does not equate to being acceptable to adults of a community as it pertains to what they believe is suitable for the minors in their community. We find no error with this preliminary determination, especially given that the trial judge, a member of the community, reviewed the memes and deemed them patently offensive under this standard.

Ultimately, whether these memes are patently offensive by community standards is a question of fact for trial. As there apparently will be a trial in this case, the parties should provide evidence of whether and in what way the internet and social media platforms have altered the community standard on this subject in order to aid the factfinder in determining whether this particular matter violates the statute….

Finally, Chapman asserts the memes have some serious literary, artistic, political, or scientific value for minors because they comment on and/or mock current society, are popular on the internet, and require a level of artistry/creativity to create. For its part, the State maintains the memes are simply crude sexual jokes that have no such value for minors. In light of our discussion of the content of the memes, we find that the court did not abuse its discretion in preliminarily determining that this factor was fulfilled.

We therefore conclude the court was well within its discretion to determine the memes constitute matter that is probably harmful to minors….

Alternatively, Chapman claims that if memes involving sexual jokes are determined to be matter harmful to minors, then Section 35-49-3-3 violates the First Amendment by placing an unacceptably heavy burden on protected speech. As the State points out, however, Chapman did not raise this issue in the trial court. Failure to challenge the constitutionality of a statute in the trial court generally results in waiver of review on appeal…

Judge Paul Mathias concurred, adding:

"[T]he prevailing standards" of the values in our communities and in our society at large have been deeply coarsened and diminished by the Internet since this criterion became law in 1983. That such coarsening has extended to teenagers, such as the alleged victim in this case, is undeniable. Just ask any high school teacher about students' language in the hallways during passing periods. A search of teenagers' cellphones for content not "suitable for minors" would easily and sadly confirm this as well.

The Internet can be a powerful force for good, but it is too easy to misuse it as a force for bad, and even for evil. The ubiquity of smartphones for teenagers, together with the instant availability and almost completely uncensored nature of content on the Internet have been at the heart of this coarsening of values for minors, and indeed for us all. One need look no further than to websites or blogs that are just one click away, and especially to social media applications such as Facebook, Twitter, Instagram, SnapChat and TikTok, all of which provide addictive "free" features and essentially uncensored and unmoderated information of all types to the user. The "only" cost for these applications is social media's unlimited search and download of users' personal information for the benefit of the applications and for sale to the highest bidder.

The issue becomes what are realistic and true "prevailing standards" at any given point in time? What is matter "not suitable for minors" in 2022? Most importantly in a criminal context, what are the actual "prevailing standards," rather than those we might aspire to?

Is sharing just the URL for a horrible website "offensive to the prevailing standards," since the recipient cannot reach the website without the affirmative act of selecting it? Are the social media apps cited above which are on most, if not all, of minors' smartphones "not suitable matter for minors" in and of themselves because of the "matter [not] suitable for minors" they provide unfettered access to? These are considerations that every judge and juror must undertake when deciding upon and enforcing "the prevailing standards."

What are we to make of the fact that minors exchange matter not "suitable for minors" every day, especially teenagers in high school? Should that fact be considered in defining "the prevailing standards of the adult community with respect to what is matter suitable for minors?" What if a classmate, sibling or cousin who is just over the age of 18 shares "matter [not] suitable for minors" with a minor friend or relative who is just under age 18? This happens every day during students' senior year of high school, as some students reach the age of majority while in high school while others do not. How should such and similar conduct inform the determination of "the prevailing standards?"

These are among the questions that all of us, including our General Assembly, need to ask. We must also ask where the freedom of speech … begin[s] and end[s] with regard to this and similar alleged criminal conduct…. "[T]he prevailing standards …" must be defined as what is factual, rather than what is aspirational. Once this is done, it will be clear that "the prevailing standards in the adult community with respect to what is suitable matter for minors" in 2022 are not the same as they were in 1983.

Judge Margret Robb dissented:

I begin by noting that I disagree with the majority that Chapman's constitutional challenge is waived. Chapman's entire argument, from the motion for preliminary determination until now, is that Indiana Code section 35-49-2-2 and the First Amendment are entwined because matter is presumptively protected by the First Amendment unless the State can prove it is matter harmful to minors as defined in section 35-49-2-2….

The heart of my disagreement with the majority decision, however, is whether the matter is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors[.]" {[B]ecause the failure to show any one of the criteria would cause that conclusion to fail, and because I believe criterion #3 is clearly not shown here, I limit my discussion to criterion #3.

In 1957, concerned parents sought to censor Elvis Presley based on what they considered his sexually suggestive hip gyrations. In 1985, soon after the Indiana legislature codified the statute at issue, 60 Minutes ran an episode entitled "Is Dungeons and Dragons Evil?" At that time, parents were concerned that the role-playing game had a morally degrading effect on youth. In 2022, most adults would consider these concerns quaint as material previously considered vulgar now populates most teenagers' cell phones or is otherwise readily available in a matter of seconds. What was once considered shocking is now barely worthy of notice.

The problem starkly illustrated by this case is that the law has not caught up with the internet age, which has expanded our definition of "community" beyond town limits or county lines to the far reaches of the world. Although the majority acknowledges and laments the cultural shift wrought by the internet, it fails to acknowledge how this shift applies to what it means to be patently offensive under the standard we use to evaluate content today…. The sexually suggestive memes at issue are almost certainly in poor taste and I do not support the sharing of them with a seventeen-year-old. Nonetheless, I cannot find this material patently offensive to prevailing standards in the adult community with respect to what is harmful to a teenager on the cusp of adulthood in 2022….

A few thoughts:

[1.] Note that the age of consent in Indiana is 16, and that the statute applies to sending material to willing recipients as well as to unwilling ones; whether the student did or didn't appreciate Chapman's messages (or his protestations of love) is irrelevant under the law. Thus, it would be a crime to send these sexually themed jokes to your 16-year-old girlfriend, but legal to actually have sex with her.

[2.] The statute pretty closely tracks what is generally understood to be the First Amendment test for what speech can be restricted as "obscene as to minors" (or, as many cases put it, "harmful to minors"), when distributed to minors. Even if Chapman had adequately raised the First Amendment defense in the trial court (as the dissent suggests he did), this likely wouldn't have affected the result.

[3.] To qualify as "obscene as to minors" or "harmful to minors," "such expression must be, in some significant way, erotic." "[S]uggest[ing] or us[ing] explicit language to refer to sexual activities or sexual situations in crude, vulgar, and degrading terms," I think, can't be enough; there has to be some tendency to sexually arouse, which I don't think these memes adequately possess.