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Tools to fight online harassment

Indiana: Statutory Criminal Law

Contents

  1. Intimidation
  2. Harassment
  3. Voyeurism
  4. Indecent Display by a Youth
  5. Stalking
  6. Cyberbullying
  7. Battery and Hazing
  8. Criminal Invasion of Privacy
  9. Criminal Trespass and Criminal Computer Trespass
  10. Unlawful Photography and Surveillance on Private Property
  11. Criminal Conversion

  1. Intimidation

    1. Introduction

      Under Indiana’s intimidation statute, an individual is prohibited from communicating with the intent to create fear of retaliation for a prior lawful act, or to force a person to engage in conduct against his or her will. Under the statute, the term “threat” is defined to include, among other things, an expression intended to “expose the person threatened to hatred, contempt, disgrace, or ridicule.” The State may be able to charge an individual with intimidation if the individual threatens to publish, or publishes, intimate photographs or videos of the victim without his or her consent as retaliation for a prior lawful act (e.g., ending a prior relationship) or forces the victim to engage in conduct against his or her will (e.g., continuing a relationship).

    2. Text of Statute(s)

      Ind. Code § 35-45-2-1 – Intimidation

    3. Cases

      1. Ajabu v. State, 677 N.E.2d 1035 (Ind. Ct. App. 1997)
        • Procedural Posture: Appeal of a trial court's conviction for intimidation
        • Law: Intimidation
        • Facts: Defendant’s son was arrested for murder, and the prosecutor sought the death penalty. Following a hearing on the death penalty request, defendant indicated that his son was innocent and made public statements in front of the media, indicating that he would kill the prosecutor and the mother of two of the murder victims if his son was given the death penalty for something he did not do. Defendant subsequently made similar statements to other media sources. He did not make these statements directly to the prosecutor or the mother. The prosecutor moved for the appointment of a special prosecutor, and a special grand jury was convened to consider defendant's statements. The grand jury heard testimony from witnesses and investigators and viewed video tapes, deliberated and then returned an indictment charging defendant with two counts of intimidation. Defendant moved for change of venue, which was granted, and he waived his right to a jury trial in the new venue. After a bench trial, the trial court convicted defendant on both counts and sentenced him to three year concurrent sentences with two years suspended on each count, for a total executed term of one year to be served on home detention. Defendant appealed.
        • Outcome: The appellate court affirmed the trial court's conviction for intimidation, finding that the intimidation statute did not require threat to be communicated directly to or in the presence of the threatened party.1 Rather, the court noted that the text of the statute does not limit the phrase “communicates a threat to another person” to only those threats made directly to or in the presence of the threatened party and that, because the word "communicate" is not modified in any way, it encompasses those threats made known or transmitted to another person through any means, including those a person makes known to the threatened party through the print, radio or television media with the requisite intent.2
      2. Raybestos Products Co. v. Younger, 54 F.3d 1234 (7th Cir. 1995)
        • Procedural Posture: Appeal of a district court jury verdict and award of damages against defendants in a civil RICO conviction, predicated in part on violation of state intimidation statute.
        • Law: Intimidation; defamation
        • Facts: Plaintiff manufactures clutch plates used in automobile transmissions. Defendant owned a company that serves mechanics that repair automobile transmissions. Defendant learned that some of plaintiff’s clutch plates may be faulty and feared that defendant would be blamed for issues with the clutch plates. Defendant tested plaintiff's clutch plates and, after completing such tests, sent a letter to plaintiff demanding a product recall, reimbursement to transmission shops that had experienced problems with the clutch plates and reimbursement to defendant for its testing work in defining the "defect." The letter also requested that plaintiff employ one of defendant's employees as a paid consultant and threatened plaintiff with adverse publicity if plaintiff it did not respond positively to the terms of the letter. After plaintiff failed to respond to the letter, defendant initiated a campaign to spread false information about plaintiff’s products. Throughout this time, plaintiff had been performing its own tests to identify any actual defects in its products and had concluded that no defect existed in the clutch plates themselves. Plaintiff filed suit against defendant. The district court jury returned a verdict and award of damages in favor of plaintiff. Defendant appealed.
        • Outcome: The appellate court affirmed the district court on all claims and cross-claims, except the district court's prejudgment interest award (which was vacated). With regarding to the intimidation claim, the court noted that plaintiff need not rely on threats to establish a violation of the intimidation statute and that the statute clearly indicates that plaintiff need only show defendant’s intent that plaintiff change his course of conduct to establish intimidation.

    4. Practice Pointers

      • The intimidation statute focuses on the intent, and effect, of a communication.
      • A “threat” does not need to be communicated directly to the threatened party, and, similarly, the perpetrator need not make a “demand” of the victim.
    1. Ajabu v. State, 677 N.E.2d 1035, 1041-43 (Ind. Ct. App. 1997). ↩
    2. Id. at 1042. ↩
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  2. Harassment

    1. Introduction

      In situations in which a victim of nonconsensual publication of intimate photographs or videos is harassed by phone, written communication, radio or computer by an individual who has the intent to annoy, harass or alarm the victim, the State may be able to pursue charge such individual with harassment.

      Similar to its intimidation statute, Indiana's harassment statute does not require that an individual directly harasses a victim; rather, the individual need only make a communication (e.g., a telephone call or email) to the victim with the intent to harass, annoy, or alarm the victim. Intent will be determined based on the evidence presented during trial.

    2. Text of Statute(s)

      (1) Ind. Code § 35-45-2-2 – Harassment; "obscene message" defined

      Sec. 2. (a) A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication:

      (1) makes a telephone call, whether or not a conversation ensues;

      (2) communicates with a person by telegraph, mail, or other form of written communication;

      (3) transmits an obscene message, or indecent or profane words, on a Citizens Radio Service channel; or

      (4) uses a computer network (as defined in Ind. Code § 35-43-2-3(a)) or other form of electronic communication to:

      (A) communicate with a person; or

      (B) transmit an obscene message or indecent or profane words to a person; commits harassment, a Class B misdemeanor.

      A message is obscene if:

      (1) the average person, applying contemporary community standards, finds that the dominant theme of the message, taken as a whole, appeals to the prurient interest in sex;

      (2) the message refers to sexual conduct in a patently offensive way; and

      (3) the message, taken as a whole, lacks serious artistic, literary, political, or scientific value.

    3. Cases

      1. J.T. v. State, 718 N.E.2d 1119 (Ind. Ct. App. 1999)
        • Procedural Posture: Appeal of a juvenile adjudication for harassment and intimidation
        • Law: Harassment; intimidation
        • Facts: High school students found a witchcraft book in the school library. A friend of defendant typed a “spell” based on defendant's written note and verbal dictation on the school computer. The subject of the “spell” was a classmate. Defendant's friend printed the document on the school printer, but it was discovered by the school librarian before the friend could retrieve it. The librarian turned the document into the school office. The principal questioned defendant until defendant admitted to writing the "spell" and then notified defendant's mother and the subject of the “spell” and her mother. The State filed a petition alleging that defendant committed acts that would constitute intimidation and harassment if committed by an adult. A juvenile referee found defendant was a delinquent child for committing such acts, and the juvenile court judge adopted those findings. Defendant appealed.
        • Outcome: The appellate court reversed the adjudications, finding that the State was not able to establish beyond a reasonable doubt each element of the crime of harassment. In analyzing the "communicate" element of the crime of harassment, the court noted that it could discern no reason to define "communicate" differently under the harassment statute than under the intimidation statute;1 therefore, the communication element of the harassment statute requires that the defendant in this case "must have known or had reason to believe that the document would reach [the subject of the "spell"]."2 Because defendant did not know or have good reason to believe that the document would reach the subject of the "spell," the State was unable to establish the "communicate" element of the crime of harassment beyond a reasonable doubt.
      2. A.B. v. State, 885 N.E.2d 1223 (Ind. 2008)
        • Procedural Posture: Appeal of a juvenile adjudication for harassment
        • Law: Harassment
        • Facts: Defendant, a former student at the middle school, posted angry comments on two MySpace pages directed at the principal of the middle school. Certain comments posted by defendant were posted on a private MySpace page, accessible only to a small group of people, while other comments were posted by defendant on a publicly-accessible MySpace page. The principal and schools are mentioned in certain of defendant's comments. As a result of these comments, delinquency proceedings were initiated against defendant alleging harassment. The trial court found that defendant was a delinquent child due to her comments that, if committed by an adult, would constitute criminal harassment. The appellate court reversed the trial court's decision, concluding that defendant's allegedly harassing messages were protected political speech. Disagreeing with this rationale, the Indiana Supreme Court granted transfer.
        • Outcome: The Indiana Supreme Court reversed the trial court's decision based not on the court of appeals' conclusion but on the conclusion that the State failed to prove all of the statutory elements for the offense of harassment. In analyzing whether the evidence presented by the State supported a finding that defendant acted with the requisite statutory intent, the court distinguished between defendant's comments posted on the private MySpace page and her comments posted on the public MySpace page. The court found that there was no evidence or reasonable inferences to support that defendant had a subjective expectation that her comments made on the private MySpace page would come to the attention of the principal.3 However, the court found that, because the public MySpace page was publicly accessible, it could be reasonably inferred that defendant had a subjective expectation that her comments would likely reach the principal.4 The court noted that this alone, however, does not establish the intent element specified in the harassment statute; rather, the State must prove that the defendant had "the intent to harass, annoy, or alarm another person but with no intent of legitimate communication."5 The court found that the content of defendant's comments on the public MySpace page presented strong evidence that defendant intended the page to be a legitimate communication of her anger and criticism of a particular incidence involving the principal and the school.6
      3. Schnitz v. State, 475 N.E.2d 59 (Ind. Ct. App. 1985)
        • Procedural Posture: Appeal of a conviction for harassment
        • Law: Harassment
        • Facts: Defendant was convicted of molesting his teenage daughter and served three months in a V.A. hospital and three months in prison. Within months of his release, he was again convicted of molesting his teenage daughter. While in prison, he sent explicit letters, as well as explicit pictures and articles from adult magazines, to his daughter and requested that his daughter send him erotic photographs of herself. His daughter sent letters back, some of which contained discussion of sexual matters and at least one of which asked defendant to stop sending letters to her. Defendant stopped sending letters after being confronted by the daughter’s social worker.
        • Outcome: The appellate court reversed the conviction and remanded the case for acquittal on all counts, finding that, despite the repugnance of the letters, there was no direct evidence that supported a finding that the defendant harbored any intention of harassing, annoying, or alarming his daughter by his letters or that he continued to send the daughter letters after receiving her request to stop.7 Therefore, the court found that the State failed to prove the defendant sent the letters with the requisite statutory intent.8

    4. Practice Pointers

      • Communication on a public forum (e.g., publication of intimate photographs or videos on an online forum or page accessible to the public) may be sufficient to establish that a defendant acted with the requisite statutory intent.
      • Communication on a private forum (e.g., publication of intimate photographs or videos on an online forum or page accessible to only a limited audience) may not be sufficient in and of itself to establish that a defendant acted with the requisite statutory intent. In this case, additional evidence that defendant had a reason to believe the communication would reach the victim may be necessary.
      • The evidence presented must show that the defendant acted with the requisite statutory intent to "harass, annoy, or alarm" the victim.
      • If a juvenile is being adjudicated to be delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt.9
    1. J.T. v. State, 718 N.E.2d 1119, 1123 (Ind. Ct. App. 1999). ↩
    2. Id. (citing Ajabu, 677 N.E.2d at 1043). ↩
    3. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008). ↩
    4. Id. at 1227. ↩
    5. Ind. Code § 35-45-2-2(a). ↩
    6. A.B. v. State, 885 N.E.2d at 1227. ↩
    7. Schnitz v. State, 475 N.E.2d 59, 61 (Ind. Ct. App. 1985). ↩
    8. Id. at 62-63. ↩
    9. J.T. v. State, 718 N.E.2d 1119, 1122 (Ind. Ct. App. 1999) (citing Al-Saud v. State, 658 N.E.2d 907, 908 (Ind.1995)). ↩
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  3. Voyeurism

    1. Introduction

      The Indiana voyeurism statute criminalizes “peeping tom” behavior in which an individual “peeps" (i.e., looks in a clandestine or surreptitious manner) on another. The penalties under the voyeurism statute increase if the perpetrator “peeps” for the purpose of seeing a person’s “private area” and increase further if the person records his or her victim and makes the image available over the Internet or otherwise transmits the image to another person. The State may be able to charge an individual who intentionally invades the victim’s privacy by viewing and/or recording the “private areas” of the victim without the victim’s consent for voyeurism.

    2. Text of Statute(s)

      Ind. Code § 35-45-4-5

    3. Cases

      1. Wallace v. State, 961 N.E.2d 529 (Ind. Ct. App. 2012)
        • Procedural Posture: Interlocutory appeal by defendant to dismiss charge of voyeurism
        • Law: Voyeurism
        • Facts: Defendant visited the victim in jail to inquire as to whether she needed legal representation, telling her that a mutual acquaintance had informed him that she may need legal assistance. The victim initially told defendant that she did not need legal representation, but later spoke with him about potentially representing her in divorce proceedings. Defendant provided the victim what he would charge to represent her and indicated that she could pay a portion now and the rest after she was released several months later. The victim arranged for a family member to provide defendant with the initial payment for his legal services. A few months later, defendant visited the victim again in jail and told her that she was no longer scheduled to be released. He indicated that if she agreed to have sexual intercourse with him after she was released, he could ensure that she would be released as scheduled. The victim agreed. Following her release from jail, the victim and defendant engaged in the proposed sexual encounter. Unbeknownst to the victim, defendant videotaped the encounter, and later showed the video to the victim’s boyfriend. The police were contacted and, following an investigation, defendant was indicted by a grand jury on several charges. The State also charged defendant under the voyeurism statute. Defendant filed a motion to dismiss the voyeurism charge as well as three separate motions to suppress evidence. The trial court denied defendant's motions and certified its orders for interlocutory appeal.
        • Outcome: The appellate court affirmed the decision of the trial court, finding that the alleged facts, if proven to be true at trial, could constitute voyeurism because defendant recorded the victim disrobing and engaging in a sexual encounter without her consent in a clandestine, surreptitious, prying or secretive nature.1 The court noted that the defendant started the camera before the victim entered the room and left it running until after the sexual encounter was over and that the victim was not aware of the recording and did not consent to it.2 Additional evidence also could lead to a reasonable inference that the defendant knew that he did not have the victim's consent at the time he recorded her and that he knowingly recorded her in a clandestine or secretive manner in an area where she was likely to disrobe.3 With regard to consent, the court concluded that it was immaterial as to whether the victim consented to the sexual encounter if she did not consent to defendant's recording of the encounter; thus, the victim's consent to the sexual encounter could not be deemed to be implicit consent to the recording of such encounter.4 Defendant’s act of secretly recording a sexual encounter could reasonably be found to be peeping, or looking in a clandestine, surreptitious, prying, or secretive nature.5

    4. Practice Pointers

      • Consent is at the crux of Indiana's voyeurism statute.
      • Because the voyeurism statute does not prohibit distribution unless the distributed recording was made without consent, the State must show that such recording was nonconsensual. Therefore, if a couple makes a consensual recording that one party later distributes without consent, the voyeurism law likely would not apply. On the other hand, if one party records a consensual act without the other party's consent, the voyeurism statute would likely apply even if the recording is not later distributed.
    1. Wallace v. State, 961 N.E.2d 529, 533 (Ind. Ct. App. 2012). ↩
    2. Wallace, 961 N.E.2d at 533. ↩
    3. Id. ↩
    4. Id. ↩
    5. Id. ↩
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  4. Indecent Display by a Youth

    1. Introduction

      The Indiana indecent display by a youth statute criminalizes the creation, possession, publication and distribution of images of individuals who are at least twelve years of age by certain persons who are under twenty-two years of age. If the victim and an individual who creates, possesses, publishes or distributes intimate photographs or videos of the victim each meet the statutory age restrictions, the State may be able to charge such individual with indecent display by a youth.

    2. Text of Statute(s)

      Ind. Code § 35-45-4-6

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

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  5. Stalking

    1. Introduction

      Indiana’s criminal stalking statute prohibits a person from repeatedly and intentionally harassing another person, such that the victim reasonably feels terrorized, frightened, intimidated or threatened.

      While the term “stalk” ordinarily means following or prowling, the stalking statute applies to any knowing or intentional “course of conduct” that constitutes repeated or continuing harassment of another. Therefore, the State may be able to charge an individual who repeatedly threatens to publish private or intimate images without the consent of the victim or an the individual who repeatedly does publish such materials without such consent, causing the victim to reasonably feel terrorized, frightened, intimidated or threatened.

    2. Text of Statute(s)

      Ind. Code § 35-45-10-1 – "Stalk" defined

      Sec. 1. As used in this chapter, "stalk" means a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened. The term does not include statutorily or constitutionally protected activity.

      Ind. Code § 35-45-10-2 – "Harassment" defined

      Sec. 2. As used in this chapter, "harassment" means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.

      Ind. Code § 35-45-10-3 – "Impermissible conduct" defined

      Sec. 3. As used in this chapter, "impermissible contact" includes but is not limited to knowingly or intentionally following or pursuing the victim.

      Ind. Code § 35-45-10-4 – "Victim" defined

      Sec. 4. As used in this chapter, "victim" means a person who is the object of stalking

      Ind. Code § 35-45-10-5 – Criminal stalking

      Sec. 5. (a) A person who stalks another person commits stalking, a Level 6 felony.

      (b) The offense is a Level 5 felony if at least one (1) of the following applies:

      (1) A person:

      (A) stalks a victim; and

      (B) makes an explicit or an implicit threat with the intent to place the victim in reasonable fear of:

      (i) sexual battery (as defined in Ind. Code § 35-42-4-8);

      (ii) serious bodily injury; or

      (iii) death.

      (2) A protective order to prevent domestic or family violence, a no contact order, or other judicial order under any of the following statutes has been issued by the court to protect the same victim or victims from the person and the person has been given actual notice of the order....

    3. Cases

      1. Smith v. State, 802 N.E.2d 948 (Ind. Ct. App. 2004)
        • Procedural Posture: Appeal of a conviction for stalking, intimidation and criminal recklessness
        • Law: Stalking; intimidation; criminal recklessness
        • Facts: Following his arrest for public intoxication and subsequent release on bond, defendant began leaving threatening messages on one of his arresting officer's voicemail. Defendant also approached another officer in a restaurant, and subsequently left numerous threatening messages on this officer's voicemail as well. Both officers indicated that they feared for their individual safety and the safety of their families. Defendant was later arrested on an outstanding warrant and charged with a number of offenses in three separate cause numbers. Defendant was convicted following a jury trial and appealed his conviction.
        • Outcome: The appellate court affirmed the judgment of the trial court. With regard to the stalking charge, the court indicated that defendant's stalking conviction was based on the voicemail messages he left for the two police officers.1 The court notes the lack of Indiana case law regarding whether a stalking conviction may be based on telephone calls alone (i.e., without the physical presence of person making the calls) and seeks guidance from case law in other jurisdictions on the point.2 The court concluded that "telephone messages, without more, may amount to impermissible contact sufficient to support a stalking conviction."3
      2. VanHorn v. State, 889 N.E.2d 908 (Ind. Ct. App. 2008)
        • Procedural Posture: Appeal of a conviction for stalking
        • Law: Stalking
        • Facts: The victim worked at a business where defendant was a regular customer. The victim and his wife noticed defendant’s car parked on the street outside of his house on numerous occasions. From his car, defendant peered at the victim’s house through binoculars. After the victim called the police multiple times to report defendant's activities outside of his home, the police obtained a warrant and arrested defendant while he was parked in a car outside of the victim's house. Binoculars were recovered from the front seat of the car. A trial court jury convicted defendant of stalking. Defendant appealed.
        • Outcome: The appellate court reversed the judgment of the trial court, finding that the evidence was insufficient to support defendant's conviction for stalking.4 In determining whether the evidence established that defendant's conduct constituted "harassment" of or "impermissible contact" with the victim, the court stated that "when the government prohibits an individual from engaging in otherwise lawful conduct, it is important to provide the accused with notice and an opportunity to be heard."5 In this case, defendant's conduct was parked on a public street (i.e., otherwise lawful conduct) and had no notice of the impermissibility of his conduct.6 The court noted that the issuance of a protective order under Indiana law would address the court's concern by providing notice to the accused, an opportunity to be heard and, where issuance of a protective order is justified, a clear statement that the accused's conduct is impermissible.7
        • Special Notes: If the only conduct at issue may be deemed to be otherwise lawful, consider whether to first seek and obtain a protective order under Ind. Code § 34-26-5.
      3. Nicholson v. State, 963 N.E.2d 1096 (Ind. 2012)
        • Procedural Posture: Review of an appellate court’s decision to overturn a stalking conviction
        • Law: Stalking; harassment
        • Facts: Defendant repeatedly called a mother and her daughters (e.g., on a daily basis at one point) and engaged in unwanted, graphic sexual conversations. Defendant also was caught peering outside of the victims’ house, arrested, convicted of voyeurism and incarcerated. Defendant had no contact with the victims for approximately two years. At some point following his release, defendant made an additional unwanted call to the victims' home. The victims, using caller ID, confirmed that the call was placed by defendant after defendant allowed the victims' call to go to his voicemail, which stated his name. The victims reported incident to the police, and defendant was arrested and charged with stalking and harassment. Defendant was convicted and appealed. The appellate court reversed defendant's stalking conviction, holding that a span of twenty-two months between contacts would not fit the definition of repeated or continuing harassment and therefore would not support a conviction for stalking.8 The Indiana Supreme Court granted transfer.
        • Outcome: The Indiana Supreme Court affirmed the judgment of the trial court, holding that the lag in time between the harassing calls did not foreclose the conviction for stalking, particularly given that much of the break in time between the calls was due to defendant's incarceration.9 The court noted that, had defendant not been incarcerated during the time between the harassing calls, its analysis may have been different.10 However, because it appeared that the main reason the stalking of the victims took a break was defendant's incarceration, the court found that defendant engaged in a knowing course of conduct that involved the repeated or continuing harassment of the victims and that that knowing conduct, which resumed upon defendant's release, would have caused a reasonable person to feel terrorized, frightened, intimidated and threatened, and did cause those feelings in at least one of the victims.11
      4. Johnson v. State, 721 N.E.2d 327 (Ind. Ct. App. 1999)
        • Procedural Posture: Appeal of a conviction for stalking
        • Law: Stalking
        • Facts: Defendant and the victim were involved in a personal relationship for approximately five years and had three children together. Defendant's behavior towards the victim was violent and controlling, and the victim ended their relationship after the second time defendant physically beat her. After the relationship ended, defendant would call the victim at all hours of the night and, if the victim refused to answer the phone, would come to her home and bang on the windows and doors and accuse her of having men in her home. On these occasions, the victim would also find the tires on her car had been flattened. Defendant talked about killing the victim, but stated that he would not do so because he loved her. One night, defendant came to the victim's home and refused to leave until the man whom he thought was in the victim's home left. After defendant had been outside of her home for approximately five hours, the victim called the police and defendant was arrested and charged with stalking. The trial court convicted defendant on one count of stalking, and defendant appealed.
        • Outcome: The appellate court affirmed the judgment of the trial court, finding that the evidence of defendant banging on the victim's windows and doors on three different occasions on the same night, requesting to be let in and berating the victim supported the conclusion that defendant engaged in a course of conduct involving repeated harassment of the victim and that evidence of defendant's long course of bad behavior towards the victim supported the conclusion that such conduct would cause a reasonable person to feel terrorized, frightened, intimidated or threatened and made the victim feel terrorized, frightened, intimidated or threatened.12

    4. Practice Pointers

      • Indiana's stalking law is intended to criminalize threatening behavior that impinges on an individual's zone of personal privacy, but which does not involve physical contact. Courts have held that phone calls, without more, can constitute stalking.13 Courts have elaborated on this by noting that a person has a right to grant or deny access to their zone of personal privacy (e.g., to deny unwanted phone calls). When a person continues to call without the recipient’s consent or in disregard of the recipient’s expressed wish that contact be discontinued, such calls may constitute “impermissible contact.”14 Although a victim could try to argue that, by the same token, emails, chats or instant messages also could constitute stalking, particularly if such communications threaten to publicize unwanted images, it is likely that an individual's uploading or posting of such content, without any particular threat, would not be sufficient to constitute stalking.
      • Stalking must involve a course of conduct involving the repeated and continuing harassment of the victim. In some cases, the course of conduct can be spread out over a long period of time, such as twenty-two months.15 In other cases, it can involve several instances over a period of time as short as one night.16
      • The mere fact that a victim feels threatened is insufficient in and of itself to establish stalking under the stalking statute.17
    1. Smith v. State, 802 N.E.2d 948, 952 (Ind. Ct. App. 2004). ↩
    2. Id. at 952-53. ↩
    3. Id. at 954. ↩
    4. VanHorn v. State, 889 N.E.2d 908, 914 (Ind. Ct. App. 2008). ↩
    5. VanHorn, 889 N.E.2d at 912-13. ↩
    6. Id. at 912. ↩
    7. VanHorn, 889 N.E.2d at 913. ↩
    8. Nicholson v. State, 963 N.E.2d 1096, 1098 (Ind. 2012). ↩
    9. Id. ↩
    10. Id. at 1102. ↩
    11. Nicholson, 963 N.E.2d 1096 at 1102-03. ↩
    12. Johnson v. State, 721 N.E.2d 327, 333 (Ind. Ct. App. 1999). ↩
    13. See, e.g., Smith v. State, 802 N.E.2d 948 (Ind. Ct. App. 2004). ↩
    14. VanHorn, 889 N.E.2d at 911-12. ↩
    15. See, e.g., Nicholson v. State, 963 N.E.2d 1096 (Ind. 1012). ↩
    16. See, e.g., Johnson v. State, 721 N.E.2d 327 (Ind. Ct. App. 1999). ↩
    17. See, e.g., VanHorn, 889 N.E.2d at 911-12. ↩
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  6. Cyberbullying

    1. Introduction

      Schools in Indiana are required to have rules that prohibit bullying, which includes bullying through the use of data or computer software that is accessed through a computer, computer system or computer network.

    2. Text of Statute(s)

      Ind. Code § 20-33-8-0.2 – "Bullying"

      Ind. Code § 20-33-8-13.5 – Discipline rules prohibiting bullying required

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Ind. Code § 20-33-8-13.5 does not provide a cause of action against a person or school based on non-compliance with this statute, and non-compliance with this statute may not be used as evidence against a school in any cause of action.1

    1. Ind. Code § 20-22-8-13-5(d). ↩
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  7. Battery and Hazing

    1. Introduction

      In situations in which a victim is physically assaulted, the State may charge a defendant with battery. A victim subject to violence at the hands of a defendant may ask the State to bring charges under this statute while bringing other related claims of his or her own against the defendant.

    2. Text of Statute(s)

      Ind. Code § 35-42-2-1 – Battery

      Ind. Code § 35-42-2-1.3 – Domestic Battery

      Ind. Code § 35-42-2-2 – Criminal recklessness; element of hazing; liability barred for good faith report or judicial participation

      Ind. Code § 35-42-2-2.5 – Hazing; good faith reporting

      Ind. Code § 35-42-2-9 – Strangulation

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  8. Criminal Invasion of Privacy

    1. Introduction

      Indiana's criminal invasion of privacy statute criminalizes the knowing or intentional violation of certain protective orders or restraining orders. In the event that an individual against whom a victim has a protective or restraining order violates such order, the State may be able to charge such individual for criminal invasion of privacy.

    2. Text of Statute(s)

      Ind. Code § 35-46-1-15.1 – Invasion of privacy; offense; penalties

      Ind. Code § 35-46-1-16 – Invasion of privacy convictions; record of persons protected by orders

      Ind. Code § 35-46-1-17 – Persons convicted of invasion of privacy; denial of access to protective order information

      Ind. Code § 35-46-1-18 – Invasion of privacy convictions; release and hearings; notice to persons protected by orders

      Ind. Code § 35-46-1-19 – Invasion of privacy convictions; time of notice to persons protected by orders

      Ind. Code § 35-46-1-20 – Enforcement of foreign protection orders

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      In the event that a person against whom the victim has a protective order or restraining order violates such order, consider whether the Indiana invasion of privacy statute applies.

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  9. Criminal Trespass and Criminal Computer Trespass

    1. Introduction

      It is possible, but unlikely, that Indiana's criminal trespass statute could apply in a situation in which a defendant intrudes on a victim's dwelling perhaps, e.g., in an effort to stalk the victim. In the event a defendant knowingly or intentionally accesses a victim's computer without the victim's consent, however, a defendant may be charged under the computer trespass statute.

    2. Text of Statute(s)

      Ind. Code § 35-43-2-2 – Criminal trespass; denial of entry; permission to enter; exceptions

      Ind. Code § 35-43-2-3 – Computer trespass; computer hoarding programs

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

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  10. Unlawful Photography and Surveillance on Private Property

    1. Introduction

      In the event that an individual knowingly or intentionally places a camera or electronic surveillance equipment that records images or data of any kind while unattended on the private property of the victim without the consent of the victim, the State may be able to charge the individual for unlawful photography and surveillance on private property.

    2. Text of Statute(s)

      Ind. Code § 35-46-8.5-1 – Unlawful Photography and surveillance on private property

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

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  11. Criminal Conversion

    1. Introduction

      Indiana's criminal conversion statute may apply to a person who knowingly or intentionally exerts unauthorized control over property of another person.

    2. Text of Statute(s)

      Ind. Code § 35-43-4-3 – Conversion

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      • A person who loses property as a result of criminal conversion "may bring a civil action against the person who caused the loss" for up to three times the amount of the damage, plus the costs of the action, reasonable attorney's fees, and certain other costs.1
      • Such a claimant must show the elements of conversion by a preponderance of the evidence.
    1. Ind.Code § 34-24-3-1. ↩
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