INDIANAPOLIS Marion Superior Judge James Osborn was clearly challenged when it came to hearing a case this month consisting of ten counts of child exploitation and child pornography against a former employee of the Marion County Forensic Services Agency.
The man was suspended from his job when the charges were leveled last summer.
“Your attorney summarized nicely what I’m sure a lot of people think about what you’ve done,” the judge told the defendant at the end of his trial. “It should be against the law, and I imagine at some point it will be, but I don’t think it is yet, at least not what you did in this particular instance.”
What the man was accused of was superimposing actual headshot photographs of juvenile girls onto the AI-created images of nude women.
“I don’t buy into the idea of that you can pin somebody else’s body onto a child and say that’s not them,” said the judge. “The child doesn’t have to exist for the statute to apply.”
Marion County Prosecutor Ryan Mears agreed.
”When the allegation is that you are creating pornography or you are creating child pornography where you’re taking images or AI images of kids…those individuals are still dangerous to our community,” Mears told local affiliate WXIN. ”Our position certainly, when you have real live identifiable children, the position of the Marion County Prosecutors’ Office is that it’s absolutely something that should be and will be prosecuted.”
Osborn indicated his sympathies may have been with the prosecution, but his reading of the law suggested the General Assembly needed to go back and tweak its statute, “because it doesn’t include language saying that he is aware of the child’s age,” though “We know (he) knew that.”
WXIN is not naming the defendant because the judge found him not guilty.
However, officials with the Marion County Prosecutor’s Office have indicated they will pursue the remaining related charge in this case.
Mears said the legal community should not read too much into one judge’s ruling regarding a law that is essentially untested.
”It’s a new statute and, as always, when there’s new statute, how that’s going to be applied by judges to specific factual circumstances is something that’s going to continue to evolve,” he said. ”There’s no case law to give us guidance. There’s no Court of Appeals or Supreme Court opinion saying, ’This is where free speech begins and this is where it ends,’ so, we’re just gonna have to try and litigate these cases and hopefully create a good record where we can send clear guidance not only to law enforcement but to the community as to when we’re gonna be able to hold people accountable.”
Osborn also said that perhaps prosecutors had cited the wrong subsection of the statute when filing the original counts.
State Sen. Aaron Freeman, a former deputy prosecutor and Republican chairman of the Senate Corrections and Criminal Law Committee, said while he is hopeful the Indiana Attorney General will seek to overturn the judge’s ruling, lawmakers should reexamine the statute as it applies to AI-generated child pornography.
”Indiana has updated our law and accommodates the law for these new and AI images,” he said. ”The law does not and should distinguish between a live human and an AI-generated human. The point is, this is the image of some child, whoever that child is, with sexual contact occurring to a child.
”We will work to get to a solution there, whether it’s through the Indiana Attorney General, that’s through the court system, the appellate process, or whether that’s us tweaking the law next session, this will be done and we’ll figure it out and we’ll get to the bottom of it and hold somebody accountable.”
