ANGOLA — The Indiana Attorney General’s Office has filed a notice to appeal a Steuben County criminal case that was dismissed because a local court ruled Indiana’s revenge pornography law was unconstitutional.
The case stems from an incident that occurred in March when a Trine University student allegedly took a video of an intimate act between himself and another Trine student at a fraternity house, then showed the video to other individuals.
The student, Conner Katz, 21, Coldwater, Michigan, was charged in March with distribution of an intimate image, but the Class A misdemeanor case was dismissed on Oct. 2 by Magistrate Randy Coffey in Steuben Circuit Court on grounds that Indiana’s revenge porn law violated U.S. and Indiana constitutional rights to free speech.
“The General Assembly enacted Indiana’s nonconsensual pornography statute last year in order to help combat a pervasive type of invasion of privacy that harms Hoosier citizens in serious ways. These laws are common around the nation, but they are relatively new, and courts have not yet had much opportunity to consider legal arguments about them,” said Stephen Creason, chief counsel in the Appeals Division of the Office of Attorney General. “While prosecutors respect the trial judge’s ruling that finds the statute to violate the First Amendment, the Office of the Attorney General has appealed the ruling because constitutional questions like these are best resolved by the appellate courts.”
The incident, which was investigated by the Angola Police Department, is also the subject of a civil lawsuit filed in Steuben Circuit Court in which the woman depicted in the video alleges to have had her reputation damaged by distribution of the video. Unspecified damages are sought from Katz.
Coffey, using guidance from legal precedent set in Minnesota and Texas appeals cases, ruled the Indiana law was unconstitutional on free speech grounds.
Based on findings of the two out-of-state cases, Coffey ruled, “this Court finds that Indiana Code 35-45-4-8 is overbroad and unconstitutional. It violates the law of free speech as contained in the United States Constitution, Amendment 1. It violates right to the free interchange of thought and opinion and the right to speak, write, or print, freely, on any subject whatever as contained in Indiana Constitution, Article I, Section 9. It cannot stand.”
The Indiana Attorney General’s Office filed notice to appeal on Thursday, the deadline for such a filing.
“The Office represents the State on appeal in criminal cases and also has a duty to defend the constitutionality of state statutes, so we will do so in this case as it proceeds through the appeal process in due course. There are not yet any deadlines for briefs or a decision,” Creason said in an email to The Herald Republican.
Steuben County Prosecutor Jeremy Musser, not directing his comments about the Katz case specifically, talked about the appeals process.
“If a case has been dismissed based on grounds that the statute as written by the Legislature is unconstitutional, it may be necessary to obtain guidance from the Indiana Court of Appeals,” Musser said. “Otherwise, my office is left in limbo as to the propriety of filing similar cases in the future. Published decisions from the Indiana Court of Appeals then become binding precedent on all Indiana trial courts.”
Musser also said, depending on the outcome of the appeal, it might be necessary for the Indiana Legislature to amend the law, which has occurred in Texas.
Specifically cited in those appeals was a provision of the law that dealt with intent of the defendant and whether he knew or should have known that the person depicted in the image had given permission to disseminate it to others. That part of the law was considered vague. The Texas law was amended to say that a defendant violates the law if he intentionally distributed an image without the consent of the person depicted in it.
“The Indiana Statute is nearly identical to the original Texas statute and to the Minnesota Statute. The decisions of these courts are persuasive. This Court discerns of no reason why the logic contained in the Minnesota and Texas decisions would not apply to the Indiana Statute. Without other Indiana guidance, incumbent on this Court is the duty to accept the decisions of our sister courts, especially as the same may apply to the United States Constitution,” Coffey wrote. “Rather than repeating the language of the decisions Texas and Minnesota Courts, this Court adopts those decisions and their holdings for this cause.”
In the civil case, the defendants will have a different hurdle to cross, which is a preponderance of the evidence, which differs from a criminal case.
The civil case alleges that Katz, by allegedly sharing the video, caused the woman in the video to be “exposed to public ridicule, and emotional trauma in (her) academic, public and private (life).”
A hearing in the case has been scheduled for Monday before Circuit Court Judge Allen Wheat.
Katz is being represented by Robert Helmer and Bryan Lewis, who served as his attorneys in the criminal case. The woman is represented by Allen Stout.
Because the case is on appeal, it is possible that the civil suit will be stayed until the criminal case runs its course.