Crime to Send Certain “Crude, Vulgar, and Degrading” Sexual Jokes to 16-/17-Year-Olds in Indiana

The majority opinion of Judge Randall Shepard in Chapman v. StateToday, we have made our decision.

Cory Chapman, a Cory Chapman interlocutory appeal appeal, appeals to the preliminary court’s determination that the information he is accused of sending to an ex-student via text messages was probably harmful to minors. We affirm.

Chapman used to be Student’s director of the band. Chapman, who resigned from Student’s band director position, allegedly left messages to her saying that he loved and misses her. Student also received numerous text messages from Chapman containing sexual jokes and memes. [see the exhibits -EV]:

  • Three females are shown in a picture with their buttocks covered. The captions “Netflix adaptation,” “Anime,” or “Manga” appear on the image.
  • A picture of a woman’s face and bare shoulder with the words “When I see someone displaying positivity” … “Oh f**k yeah spread it”
  • The image shows a straw suspended above a lidless cup with the words: “When she likes to you, but only as friend.”
  • Picture of a chalkboard with “Anime Tiddies” as the title. Also, a Pros column listing “Big AF”, “2D”, “Jiggle Physics,” and “On ur waifu” is shown.
  • The caption reads “When he takes his sweet time getting the cum rug” and is a picture of a cartoon-character with white fluid on its stomach.
  • A picture of Spiderman with the caption “A teen boy’s body changes & he discovers he can shoot a white sticky liquid out of his body”
  • Two pictures of a woman holding a chalkboard – in one picture the chalkboard states “Moms should get a fast pass to the front of the line at coffee shops. Honey, you’re 22 & slept 10 hours last night? Get to the back of the line” – in the second picture the chalkboard states “Moms should wait in line like everybody else. Because someone has cummed in you, you’re no different.
  • A list stating “Make her p***y wet not her eyes,” “Make his d**k hard not his life,” “Break her bed not her heart,” “Play with her boobs not her feelings,” and “Get on his d**k not his nerves”
  • A text stating “Day 26 without sex: threw the neighbors’ cat in the pool just so I can tell the homies I got some p***y wet over the weekend.”
  • Text stating that Day 147 was without sex. I ate some fruit gushers to feel the squirt inside my mouth.
  • Text stating that Day 42559 was without sex. He got hit by an automobile and said, ‘You know what? I can take it more’.

Student had disclosed the memes and the State then accused Chapman of disseminating material harmful to minors. This is a level 6 felony. Chapman requested a preliminary ruling on whether the information in the memes are likely to be harmful for minors, pursuant to Indiana Code section 35-249-2-4 (1983). After a hearing, Chapman was found guilty of the offense. …

Chapman has been charged by the state with intentionally and knowingly spreading harmful information to minors [in that] …:

(1) It refers or represents in any form nudity, sexual conduct or emotional stimulation, and/or sado-masochistic abuse.

(2) Taken as a whole it appeals at the sexy desire of minors.

(3) It offends the standards that govern what material is appropriate for minors in adult communities as a group;

It is (4) a complete text that lacks any serious artistic, political or scientific significance for minors.

A hearing was held pursuant Section 35-49-22-4. After copies of the memes were introduced into evidence, the trial Court ruled that they are probably harmful to minors.

We caution that the pre-trial preliminary determination under Section 35-49-2-4 is just that—preliminary. It does not require proof beyond reasonable doubt or conclusive proof of the criteria in Section 35-49-2. On appeal we will generally look for any abuse of discretion in interlocutory decisions. An abuse of discretion occurs when the court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law….


We agree that the memes don’t show nudity, sado-masochistic abuse or sexual behavior. However, we cannot say the same for sexual conduct and sexual excitement. The following is what “sexual conduct” means:

sexual intercourse refers to acts that involve the sex organs of two people and their mouths or anus.

The condition in which the human genitals are subject to sexual stimulation, or arousal is called “Sexual Excitement”.

The explicit description of acts and conditions as defined by section 35-49-2(1) is not required. It allows these acts or conditions to be described and/or represented in any format. The definition of “describe” means “to describe or give an account in words”, and “to depict by a model, figure, or picture.” A representation is defined as: “to put clearly in front of the mind”; to serve as a sign/symbol of; “to portray;” “to describe.” These words can be combined with “in any format” to create Subsection (1). It includes anything that makes the mind think, acts as a symbol or sign, is a model or figure or portrays sexual conduct or excitement. Accordingly, almost all, if not all, the memes here can be said to describe or represent sexual conduct or sexual excitement….

Both parties agreed that “prurient” is a term that refers to anything that “marks or arouses an unwholesome or immoderate interest or desire, especially sexual desire.” Chapman claims that the memes are merely humorous, and therefore do not fall within this definition. But, all the memes use explicit language that refers to sexual activities in degrading, crude and vulgar terms. Thus, we conclude that the trial court fairly determined that the memes appeal to the prurient interest in sex of minors….

Concerning [patent offensiveness]Chapman claims that the court’s decision is incorrect due to the wide availability of memes via social media, which are accessible by minors. The widespread accessibility does not necessarily mean the memes are acceptable to adult members of a society. This applies to their beliefs about what is appropriate for children in the community. This preliminary decision is correct, particularly considering that the judge in the case, who was a member the community, looked at the memes and found them offensive.

The question of fact is for trial whether the memes were clearly offensive to community standards. As there apparently will be a trial in this case, the parties should provide evidence of whether and in what way the internet and social media platforms have altered the community standard on this subject in order to aid the factfinder in determining whether this particular matter violates the statute….

Chapman also asserts that the memes can have serious literary and artistic, political or scientific significance for minors. These memes comment on, mock, and promote a sense of humor, as well as requiring creativity and artistry to make. The State, for its part claims that the memes are merely crude sexual jokes and have no value to minors. After discussing the content of these memes, the court didn’t abuse its discretion by preliminarily ruling that the element was satisfied.

We therefore conclude the court was well within its discretion to determine the memes constitute matter that is probably harmful to minors….

Chapman further claims that Section 35-493-3-3 would violate the First Amendment if it was determined that memes featuring sexual jokes were harmful to minors. This is because Section 35-493-3-3 places an unreasonable burden on protected expression. This issue was not raised by Chapman, as the State points out. Failure to challenge the constitutionality of a statute in the trial court generally results in waiver of review on appeal…

Judge Paul Mathias concurred, adding:

“[T]Since 1983, the Internet has made it difficult to maintain the “prevailing standards” for values within our societies and communities. It is obvious that this coarsening extends to teens, as in the case of the victim. Ask any teacher at high school about the language used by students in hallways and during breaks. This is also confirmed by a search on teenagers’ phones for material that was not suitable for minors.

Although the Internet is a great tool for good, it can also be misused to bring down people and cause harm. It is the ubiquity and uncensored availability of information on smartphones that has been responsible for this erosion of value for teens and all people. There are many websites, blogs, social media sites, apps, such as Facebook and Twitter that provide addictive features. They also offer uncensored information and unmoderated content. These applications have no cost other than the unlimited search of and downloading of user’s personal data for their benefit and sale to anyone who wants it.

It is now a question of what “prevailing standards”, at any time, are real and acceptable. What constitutes matter “not suitable to minors in 2022?” In a criminal context, which are the current “prevailing standards”, rather than the ones we could aspire too?

If the receiver cannot access the site without first selecting it, is sharing only the URL to a horrendous website offensive? Is it possible that the above-mentioned social media apps, which can be found on almost all of our smartphones, are “not suitable matters for minors,” because they do not directly address the subject matter? [not]They are “suitable for minors”, and they allow unrestricted access. All judges and jurors should consider all these aspects when they decide on or enforce “prevailing standards.”

Is it possible for teens in high school to exchange matters that are not appropriate for them? That fact must be considered when we define “the prevailing standard of adult community in respect to matter suitable for minors.” Consider what happens if an 18-year-old classmate, sibling, or cousin shares the “matter”. [not]”suitable for minors”, with a relative or friend who is under 18 years old. As some students attain the age of majority in high school and others don’t, this happens daily during their senior year. These and similar behaviors should inform “the current standards” determinations.

These are the kinds of questions we all, together with our General Assembly, must ask. We must also ask where the freedom of speech … begin[s]And finally[s] with regard to this and similar alleged criminal conduct…. “[T]he prevailing standards …” must be defined as what is factual, rather than what is aspirational. It will become clear that 2022’s “prevailing standards for adult communities in respect of what is suitable material for minors” are different from 1983.

Judge Margret Robb dissented:

First, I want to say that I don’t agree that Chapman is exempted from the constitutional challenge. Chapman’s entire argument, from the motion for preliminary determination until now, is that Indiana Code section 35-49-2-2 and the First Amendment are entwined because matter is presumptively protected by the First Amendment unless the State can prove it is matter harmful to minors as defined in section 35-49-2-2….

My main disagreement with the majority decision is, however, whether it is patently offensive to the prevailing standards of the adult community in general with respect to what is appropriate for minors.[.]” {[B]Failure to demonstrate any of the criteria could cause this conclusion to fail. Because I feel that criterion #3 has been missed, I will only discuss criterion #3.

Parents were concerned about Elvis Presley’s sexually suggestive hip movements in 1957 and sought to have him censored. 60 Minutes broadcast an episode entitled, “Is Dungeons and Dragons Evil?” shortly after Indiana legislator codified that statute in 1985. Parents were worried that role-playing games could have a negative impact on their children’s morality. These concerns would be considered quaint by most adults in 2022. Material that was once vulgar is now easily accessible on most teens’ phones and other places. It is no longer shocking to be aware of what was previously considered alarming.

This case illustrates the problem: the law hasn’t caught up with technology, which has extended our concept of community beyond local boundaries and county lines. Although the majority acknowledges and laments the cultural shift wrought by the internet, it fails to acknowledge how this shift applies to what it means to be patently offensive under the standard we use to evaluate content today…. These sexually suggestive memes are most likely in bad taste, and I don’t support sharing them with anyone under 17. Nonetheless, I cannot find this material patently offensive to prevailing standards in the adult community with respect to what is harmful to a teenager on the cusp of adulthood in 2022….

Here are some thoughts

[1.]Indiana has a 16-year-old consent age. The law applies equally to both willing and unwilling recipients. It does not matter whether Chapman sent Chapman messages, or his love protestations to the student. It would be illegal to send sexually-themed jokes to your girlfriend of 16 years, but it is legal to have actual sex.

[2.]This statute closely matches what it is commonly understood to be the First Amendment test to determine what speech, when given to minors, can be considered “obscene as minors” or “harmful as minors”. The outcome would not have been affected if Chapman, as the dissent implies, had adequately raised his First Amendment defense during trial.

[3.]In order to qualify for “obscene as minors” and “harmful as minors”, “such expressions must be in some meaningful way erotic.” “[S]Uggest[ing]Oder us[ing]”Explicit language that refers to sexual activities, or situations in crude and vulgar terms,” I believe, cannot be sufficient; one must have a tendency sexually to arouse. I do not think this memes possess the necessary qualities.