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- Oct 3, 2012
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It is codified in a number of places and forms in the revised code. IC 35-42-4-9(e) is one such place. 35-49-3-4 is another variation. It isn't the most well written law, while it facially applies to anyone under 22, mathematically it sometimes cannot.
To make the discussion a bit easier, here are the current codes:
IC 35-42-4-9
Sexual misconduct with a minor
Sec. 9. (a) A person at least eighteen (18) years of age who, with
a child at least fourteen (14) years of age but less than sixteen (16)
years of age, performs or submits to sexual intercourse or other
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sexual conduct (as defined in IC 35-31.5-2-221.5) commits sexual
misconduct with a minor, a Level 5 felony. However, the offense is:
(1) a Level 4 felony if it is committed by a person at least
twenty-one (21) years of age; and
(2) a Level 1 felony if it is committed by using or threatening
the use of deadly force, if it is committed while armed with a
deadly weapon, if it results in serious bodily injury, or if the
commission of the offense is facilitated by furnishing the victim,
without the victim's knowledge, with a drug (as defined in
IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with the
drug or controlled substance without the victim's knowledge.
(b) A person at least eighteen (18) years of age who, with a child
at least fourteen (14) years of age but less than sixteen (16) years of
age, performs or submits to any fondling or touching, of either the
child or the older person, with intent to arouse or to satisfy the sexual
desires of either the child or the older person, commits sexual
misconduct with a minor, a Level 6 felony. However, the offense is:
(1) a Level 5 felony if it is committed by a person at least
twenty-one (21) years of age; and
(2) a Level 2 felony if it is committed by using or threatening
the use of deadly force, while armed with a deadly weapon, or
if the commission of the offense is facilitated by furnishing the
victim, without the victim's knowledge, with a drug (as defined
in IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with the
drug or controlled substance without the victim's knowledge.
(c) It is a defense that the accused person reasonably believed that
the child was at least sixteen (16) years of age at the time of the
conduct. However, this subsection does not apply to an offense
described in subsection (a)(2) or (b)(2).
(d) It is a defense that the child is or has ever been married.
However, this subsection does not apply to an offense described in
subsection (a)(2) or (b)(2).
(e) It is a defense to a prosecution under this section if all the
following apply:
(1) The person is not more than four (4) years older than the
victim.
(2) The relationship between the person and the victim was a
dating relationship or an ongoing personal relationship. The
term "ongoing personal relationship" does not include a family
relationship.
(3) The crime:
(A) was not committed by a person who is at least
twenty-one (21) years of age;
(B) was not committed by using or threatening the use of
deadly force;
(C) was not committed while armed with a deadly weapon;
(D) did not result in serious bodily injury;
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(E) was not facilitated by furnishing the victim, without the
victim's knowledge, with a drug (as defined in
IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with
the drug or controlled substance without the victim's
knowledge; and
(F) was not committed by a person having a position of
authority or substantial influence over the victim.
(4) The person has not committed another sex offense (as
defined in IC 11-8-8-5.2) (including a delinquent act that would
be a sex offense if committed by an adult) against any other
person.
As added by P.L.79-1994, SEC.15. Amended by P.L.33-1996, SEC.9;
P.L.216-1996, SEC.21; P.L.31-1998, SEC.8; P.L.266-2003, SEC.1;
P.L.216-2007, SEC.45; P.L.158-2013, SEC.445
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
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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
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;
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(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.
