The ability of the state of Indiana to protect its children came under intense scrutiny in 2015, with the nationwide story of Indiana native Jared Fogle participating in the distribution of child pornography. Fogle, 37 at the time of his federal case indictment, had achieved international fame as the spokesperson for the Subway diet, and he famously lost hundreds of pounds while eating only Subway over a number of years. His high profile brought additional scrutiny to the state of Indiana because he had allegedly been participating in this activity for a number of years.
Although Fogle pled guilty to receiving and distributing child pornography of children around the world, much of the case was made over the distribution of materials originating in Indiana. One of Fogle’s acquaintances, Russell Taylor, was found to have the original materials of a 14 year old Indiana girl. Fogle found out about the abusive relationship between Taylor and the girl and said nothing, choosing instead to receive and distribute the materials that he received from Taylor across the Internet on dark web sites.
The case came under federal jurisdiction after it was found that Fogle traveled between states in order to participate in commercial sex acts with minors. Fogle was charged with the exploitation of 12 minors in Indiana between March 2011 and January 2015.
The Indiana Sex Crimes Statute
IC 35-42-4 is the Indiana law that deals with sex crimes, with IC 35-42-4-4 through IC 35-42-4-13 the relevant statutes in the Fogle case. IC 35-42-4-4 deals with child pornography, defining all relevant terms, including an especially detailed definition of a “child pornographer.”
Some of the pornographic materials that Fogle received from Taylor featured the exploitation of children from other countries as young as six. The Fogle case is especially important because of its direct line to Indiana Senate Bill 396, which increased many of the penalties for possession, distribution and participation in the production of child pornography. The following is a summary of the new penalties introduced in the bill:
- Child exploitation penalty increased from L5 to L4 felony
- Child exploitation of a child less than 12 penalty increased from a L5 to L3 felony
- Child pornography possession penalty increased from L6 to L5 felony
- Child pornography possession penalty of a child less than 12 penalty increased from L6 to L4 felony
Under the new law, no child pornography conviction is eligible for misdemeanor status, which would require the felony to be categorized at L6. The ranges of felony sentences are currently as follows:
- L6 Felony – A 6 month to 2.5 year range; sentences are usually advised at 1 year; possible misdemeanor treament
- L5 Felony – A 1 to 6 year range; sentences are usually advised at 3 years
- L4 Felony – A 2 to 12 year range; sentences are usually advised at 6 years
- L3 Felony – A 3 to 16 year range; sentences are usually advised at 9 years
- L2 Felony – A 10 to 30 year range; sentences are usually advised at 17.5 years
- L1 Felony – A 20 to 40 year range; sentences are usually advised at 30 years
The Federal Sex Crime Statue
The statutes 18 U.S.C. § 2251 through 18 U.S.C. § 2252A, 18 U.S.C. § 2256 and 18 U.S.C. § 2260 are the relevant statutes for child pornography at the federal level. Among many other things, these statutes define child pornography as never protected under the First Amendment and define it as illegal contraband. It also imposes a federal jurisdiction if any crime under the statute is committed via interstate or foreign commerce.
The federal government imposes a minimum sentencing guideline for the production, distribution, transport or possession of child pornography with intent to sell or distribute as five years. There is no federal sentencing minimum for the possession of child pornography. However, the sentences that are actually handed out for federal child pornography cases have increased more than 500% within the past 15 years.
The US Sentencing Commission is the official body that takes into account the current guidelines for offenses that include child pornography. They are currently reviewing how sentencing for child pornography crimes can be improved at the federal level.
Sex crimes are among the most serious the law considers, especially crimes that involve a minor. If you or someone that you know has been the victim of such a crime, you need legal assistance immediately. The offices of Hayes Ruemmele LLC are ready to put the law on your side when you need it most. Give us a call at (317) 491-1050.