First Regular Session 117th General Assembly (2011)
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HOUSE ENROLLED ACT No. 1083
AN ACT to amend the Indiana Code concerning criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 20-26-5-33; (11)HE1083.1.1. -->
SECTION 1. IC 20-26-5-33 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec. 33. A school corporation may offer classes,
instruction, or programs regarding the potential risks and
consequences of creating and sharing sexually suggestive or explicit
materials through cellular telephones, social networking web sites,
computer networks, and other digital media.
SOURCE: IC 20-33-8-13.5; (11)HE1083.1.2. -->
SECTION 2. IC 20-33-8-13.5, AS ADDED BY P.L.106-2005,
SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2011]: Sec. 13.5. (a) Discipline rules adopted by the
governing body of a school corporation under section 12 of this chapter
must:
(1) prohibit bullying; and
(2) include provisions concerning education, parental
involvement, reporting, investigation, and intervention.
(b) The discipline rules described in subsection (a) must apply when
a student is:
(1) on school grounds immediately before or during school hours,
immediately after school hours, or at any other time when the
school is being used by a school group;
(2) off school grounds at a school activity, function, or event;
(3) traveling to or from school or a school activity, function, or
event; or
(4) using property or equipment provided by the school.
(c) The discipline rules described in subsection (a) must prohibit
bullying through the use of data or computer software that is
accessed through a:
(1) computer;
(2) computer system; or
(3) computer network;
of a school corporation.
(c) (d) This section may not be construed to give rise to a cause of
action against a person or school corporation based on an allegation of
noncompliance with this section. Noncompliance with this section may
not be used as evidence against a school corporation in a cause of
action.
SOURCE: IC 35-42-4-4; (11)HE1083.1.3. -->
SECTION 3. IC 35-42-4-4, AS AMENDED BY P.L.216-2007,
SECTION 43, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2011]: Sec. 4. (a) As used in this section:
"Disseminate" means to transfer possession for free or for a
consideration.
"Matter" has the same meaning as in IC 35-49-1-3.
"Performance" has the same meaning as in IC 35-49-1-7.
"Sexual conduct" means sexual intercourse, deviate sexual conduct,
exhibition of the uncovered genitals intended to satisfy or arouse the
sexual desires of any person, sadomasochistic abuse, sexual intercourse
or deviate sexual conduct with an animal, or any fondling or touching
of a child by another person or of another person by a child intended to
arouse or satisfy the sexual desires of either the child or the other
person.
(b) A person who knowingly or intentionally:
(1) manages, produces, sponsors, presents, exhibits, photographs,
films, videotapes, or creates a digitized image of any performance
or incident that includes sexual conduct by a child under eighteen
(18) years of age;
(2) disseminates, exhibits to another person, offers to disseminate
or exhibit to another person, or sends or brings into Indiana for
dissemination or exhibition matter that depicts or describes sexual
conduct by a child under eighteen (18) years of age; or
(3) makes available to another person a computer, knowing that
the computer's fixed drive or peripheral device contains matter
that depicts or describes sexual conduct by a child less than
eighteen (18) years of age;
commits child exploitation, a Class C felony.
(c) A person who knowingly or intentionally possesses:
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
that depicts or describes sexual conduct by a child who the person
knows is less than sixteen (16) years of age or who appears to be less
than sixteen (16) years of age, and that lacks serious literary, artistic,
political, or scientific value commits possession of child pornography,
a Class D felony.
(d) Subsections (b) and (c) do not apply to a bona fide school,
museum, or public library that qualifies for certain property tax
exemptions under IC 6-1.1-10, or to an employee of such a school,
museum, or public library acting within the scope of the employee's
employment when the possession of the listed materials is for
legitimate scientific or educational purposes.
(e) It is a defense to a prosecution under this section that:
(1) the person is a school employee; and
(2) the acts constituting the elements of the offense were
performed solely within the scope of the person's employment
as a school employee.
(f) Except as provided in subsection (g), it is a defense to a
prosecution under subsections (b)(1), (b)(2), and (c) if all the
following apply:
(1) A cellular telephone, another wireless or cellular
communications device, or a social networking web site was
used to possess, produce, or disseminate the image.
(2) The defendant is not more than four (4) years older or
younger than the person who is depicted in the image or who
received the image.
(3) The relationship between the defendant and the person
who received the image or who is depicted in the image 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 image or who is depicted in the
image acquiesced in the defendant's conduct.
(g) The defense to a prosecution described in subsection (f) does
not apply if:
(1) the person who receives the image disseminates it to a
person other than the person:
(A) who sent the image; or
(B) who is depicted in the image;
(2) the image is of a person other than the person who sent the
image or received the image; or
(3) 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;
(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.
SOURCE: IC 35-49-3-4; (11)HE1083.1.4. -->
SECTION 4. IC 35-49-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: 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
his the employee's employment;
(3) that
he the defendant had reasonable cause to believe that the
minor involved was eighteen (18) years old 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 old
or older; or
(4) that
he the defendant was a salesclerk, motion picture
projectionist, usher, or ticket taker, acting within the scope of
his
the defendant's employment and that
he the defendant had no
financial interest in the place where
he 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 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.
SOURCE: ; (11)HE1083.1.5. -->
SECTION 5. P.L.182-2009(ss), SECTION 493, IS AMENDED TO
READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: SECTION 493.
(a) As used in this SECTION, "commission" refers to the criminal code
evaluation commission established by subsection (b).
(b) The criminal code evaluation commission is established to
evaluate the criminal laws of Indiana. If, based on the commission's
evaluation, the commission determines that changes are necessary or
appropriate, the commission shall make recommendations to the
general assembly for the modification of the criminal laws.
(c) The commission may study other topics assigned by the
legislative council or as directed by the commission chair.
(d) The commission may meet during the months of:
(1) July, August, and September of 2009;
(2) April, May, June, July, August, and September of 2010; and
(3) (1) June, July, August,
and September,
and October of 2011;
and
(2) April, May, June, July, August, September, and October
of 2012.
(e) The commission consists of seventeen (17) members appointed
as follows:
(1) Four (4) members of the senate, not more than two (2) of
whom may be affiliated with the same political party, to be
appointed by the president pro tempore of the senate.
(2) Four (4) members of the house of representatives, not more
than two (2) of whom may be affiliated with the same political
party, to be appointed by the speaker of the house of
representatives.
(3) The attorney general or the attorney general's designee.
(4) The commissioner of the department of correction or the
commissioner's designee.
(5) The executive director of the prosecuting attorneys council of
Indiana or the executive director's designee.
(6) The executive director of the public defender council of
Indiana or the executive director's designee.
(7) The chief justice of the supreme court or the chief justice's
designee.
(8) Two (2) judges who exercise criminal jurisdiction, who may
not be affiliated with the same political party, to be appointed by
the governor.
(9) Two (2) professors employed by a law school in Indiana
whose expertise includes criminal law, to be appointed by the
governor.
(f) The chairman of the legislative council shall appoint a legislative
member of the commission to serve as chair of the commission.
Whenever there is a new chairman of the legislative council, the new
chairman may remove the chair of the commission and appoint another
chair.
(g) If a legislative member of the commission ceases to be a member
of the chamber from which the member was appointed, the member
also ceases to be a member of the commission.
(h) A legislative member of the commission may be removed at any
time by the appointing authority who appointed the legislative member.
(i) If a vacancy exists on the commission, the appointing authority
who appointed the former member whose position is vacant shall
appoint an individual to fill the vacancy.
(j) The commission shall submit a final report of the results of its
study to the legislative council before November 1,
2011. 2012. The
report must be in an electronic format under IC 5-14-6.
(k) The Indiana criminal justice institute shall provide staff support
to the commission to prepare:
(1) minutes of each meeting; and
(2) the final report.
(l) The legislative services agency shall provide staff support to the
commission to:
(1) advise the commission on legal matters, criminal procedures,
and legal research; and
(2) draft potential legislation.
(m) Each member of the commission is entitled to receive the same
per diem, mileage, and travel allowances paid to individuals who serve
as legislative and lay members, respectively, of interim study
committees established by the legislative council.
(n) The affirmative votes of a majority of all the members who serve
on the commission are required for the commission to take action on
any measure, including the final report.
(o) Except as otherwise specifically provided by this SECTION, the
commission shall operate under the rules of the legislative council. All
funds necessary to carry out this SECTION shall be paid from
appropriations to the legislative council and the legislative services
agency.
(p) For the 2011 interim, the commission shall study:
(1) child solicitation (IC 35-42-4-6), including whether or not
there should be an increased penalty for a person who is at
least twenty-one (21) years of age to knowingly or
intentionally solicit a child less than fourteen (14) years of age,
or an individual the person believes to be a child less than
fourteen (14) years of age;
(2) child trafficking, including whether the general assembly
should enact a crime of promotion of child trafficking and if
promotion of child trafficking should be added to the list of
sex offenses under IC 11-8-8-4.5;
(3) sex crimes against children, including whether there
should be an increased penalty, or creation of a new crime, for
the commission of a sex crime by a person at least twenty-one
(21) years of age with whom the child victim has a
relationship of trust or emotional dependence, including a
school employee, school volunteer, counselor, therapist,
member of the clergy, and medical personnel; and
(4) the appropriate statute of limitations for sex crimes
against children, including child molesting (IC 35-42-4-3),
child exploitation (IC 35-42-4-4(b)), and sexual misconduct
with a minor (IC 35-42-4-9).
(p) (q) This SECTION expires December 31,
2011. 2012.
HEA 1083 _ CC 1
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