The Indiana Court of Appeals has determined a 2022 state law prohibiting Hoosiers from possessing or viewing simulated child pornography is unconstitutional because no actual children are harmed by its production.
The 3-0 decision was practically foreordained after the office of Republican Attorney General Todd Rokita conceded the statute enacted by the Republican-controlled General Assembly and Republican Gov. Eric Holcomb was incompatible with the 1st Amendment of the U.S. Constitution and prior legal precedents.
In 1969, for example, the U.S. Supreme Court ruled the government cannot prohibit Americans from possessing obscene materials inside their homes because "our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
The nation's high court made an exception to that standard in 1982 and 1990 for actual child pornography, however, because it found the creation of child pornography is a form of child abuse, and the government's interest in protecting children from sexual abuse outweighs the right of individuals to possess child pornography.
But simulated child pornography, whether hand-drawn or computer animated, is different — and constitutionally protected — the Supreme Court said in 2002 because no no real, living children are abused to create it.
At issue in this case were Japanese-type cartoon drawings of young girls engaged in sex acts in a style generally known as "Lolicon," a reference to the Vladimir Nabokov novel "Lolita" about a middle-aged professor's sexual obsession with his 12-year-old stepdaughter.
According to court records, Frank Grecco III, of Plainfield, was charged with two counts of possession of child pornography after he admitted during a job interview with the Indiana State Police that he was "addicted to" animated child pornography, and a subsequent police search of Grecco's electronic devices confirmed he viewed simulated child pornography images on at least three websites.
Grecco claimed prior to trial the charges against him should be dismissed because they alleged "no possession of pornography of any actual, living and breathing children" — an argument rejected by Hendricks Superior Judge Stephenie LeMay-Luken.
The unanimous ruling by the Indiana Court of Appeals reverses the trial judge's decision and directs the charges against Grecco be dismissed.
The legal precedents underlying that outcome were well known — but disregarded — by Hoosier lawmakers when the provisions of House Bill 1191 (2022), which did not pass the House, were inserted by the Senate in House Enrolled Act 1363 (2022), the annual Department of Child Services agency legislation, and overwhelmingly approved by the General Assembly.
Earlier this year, the Legislature in Senate Enrolled Act 17 (2024) also barred adult-oriented websites from displaying sexually explicit content to Indiana adults unless the website employs a rigorous age-verification system.
U.S. District Senior Judge Richard Young said June 30 that law likely violates the 1st Amendment rights of Hoosier adults in its zeal to prevent individuals younger than 18 years old from accessing adult-oriented content online.
Though the 7th U.S. Circuit Court of Appeals nevertheless permitted the Indiana law to take effect in August while awaiting a U.S. Supreme Court ruling next year on a similar Texas statute the nation's high court tentatively allowed to go into force.
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