First Regular Session 117th General Assembly (2011)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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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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