Sec. 5. (a) A person eighteen (18) years of age or older
who knowingly or intentionally directs, aids, induces, or causes a child
under the age of sixteen (16) to touch or fondle himself or herself or
another child under the age of sixteen (16) with intent to arouse or
satisfy the sexual desires of a child or the older person commits
vicarious sexual gratification, a Level 5 felony. However, the offense
is:
(1) a Level 4 felony if a child involved in the offense is under the
age of fourteen (14); and
(2) a Level 3 felony if:
(A) the offense is committed by using or threatening the use of
deadly force or while armed with a deadly weapon;
(B) the commission of the offense is facilitated by furnishing
the victim, without the victim's knowledge, with a drug (as
defined in IC 16-42-19-2(1)) or a controlled substance (as
defined in IC 35-48-1.1-7) or knowing that the victim was
furnished with the drug or controlled substance without the
victim's knowledge; or
(C) the commission of the offense results in serious bodily
injury.
(b) A person eighteen (18) years of age or older who knowingly or
intentionally directs, aids, induces, or causes a child under the age of
sixteen (16) to:
(1) engage in sexual intercourse with another child under sixteen
(16) years of age;
(2) engage in sexual conduct with an animal other than a human
being; or
(3) engage in other sexual conduct (as defined in IC 35-31.5-2-221.5) with another person;
with intent to arouse or satisfy the sexual desires of a child or the older
person commits vicarious sexual gratification, a Level 4 felony.
However, the offense is a Level 3 felony if any child involved in the
offense is less than fourteen (14) years of age, and the offense is a
Level 2 felony if the offense is committed by using or threatening the
use of deadly force, if the offense is committed while armed with a
deadly weapon, if the offense results in serious bodily injury, or if the
commission of the offense is facilitated by furnishing the victim,
without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1.1-7)
or knowing that the victim was furnished with the drug or controlled
substance without the victim's knowledge.
(c) A person eighteen (18) years of age or older who knowingly or
intentionally:
(1) engages in sexual intercourse;
(2) engages in other sexual conduct (as defined in IC 35-31.5-2-221.5); or
(3) touches or fondles the person's own body;
in the presence of a child less than fourteen (14) years of age with the
intent to arouse or satisfy the sexual desires of the child or the older
person commits performing sexual conduct in the presence of a minor,
a Level 6 felony.
As added by P.L.183-1984, SEC.4. Amended by P.L.79-1994,
SEC.13; P.L.31-1998, SEC.6; P.L.118-2002, SEC.1; P.L.123-2003,
SEC.1; P.L.158-2013, SEC.441; P.L.186-2025, SEC.236.
Notes of Decisions
Cited in
41
cases, 1991–2020 · leading case:
Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).
Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).
· cites it 5× “Indiana Code section 35-42-4-5 is not unconstitutionally vague, and the evidence is sufficient to support Baum-gartner’s conviction thereunder for performing sexual conduct in the presence of a minor.”
Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009).
· cites it 6× “Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.”
United States v. Taylor, 640 F.3d 255 (7th Cir. 2011).
· cites it 5× “Ind. Code 35-42-4-5(c). At trial, Taylor's defense was that he thought the person "elliegirl1234" with whom he was having these online conversations was an adult, and the idea that he was engaging with minor was a fantasy.”
Ellis v. State, 736 N.E.2d 731 (Ind. 2000).
· cites it 4× “In addition to attempted murder, three Class A felonies are not on the list: vicarious sexual gratification (Ind.Code § 35-42-4-5); sexual misconduct with a minor (Ind.”
Sipe v. State, 797 N.E.2d 336 (Ind. Ct. App. 2003).
· cites it 6× “Indiana Code § 35-42-4-5 is written in the disjunctive; so, a person commits vicarious sexual gratification if he directs or aids or induces or causes a child to touch or fondle herself.”
State v. Pollard, 908 N.E.2d 1145 (Ind. 2009).
· cites it 2× “[8] Although there is a rational connection to a non-punitive purpose public safety and protection of children the residency restriction statute applies equally to persons convicted for example of vicarious sexual gratification as a Class D felony in violation of Ind.Code §…”
Healey v. State, 969 N.E.2d 607 (Ind. Ct. App. 2012).
· cites it 2× “On the other hand, in Jensen , the defendant pleaded guilty to, among other things, vicarious sexual gratification under Ind.Code Ann. § 35-42-4-5 (West, Westlaw through legislation effective May 31, 2012).”
Haddock v. State, 800 N.E.2d 242 (Ind. Ct. App. 2003).
· cites it 2× “Appellate Rule 22, which provides that citations to decisions in briefs are to follow the format put forth in the current edition of a Uniform System of Citation (Bluebook).”
United States v. Cochran, 534 F.3d 631 (7th Cir. 2008).
· cites it 3× “Code § 35 -^12-4-6 for child solicitation and Ind.Code § 35-42-4-5 for vicarious sexual gratification by fondling in a minor’s presence.”
Doe v. O'connor, 790 N.E.2d 985 (Ind. 2003).
· cites it 2× “Code § 35-42-4-3); vicarious sexual gratification (Ind.Code § 35-42-4-5); child solicitation (Ind.”
Louallen v. State, 778 N.E.2d 794 (Ind. 2002).
· cites it 2× “In Ind.Code § 35-42-4-5, a separate but closely related “touching or fondling with the intent to gratify” statute, the Legislature specifically mandates: “(a) A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child…”
Kevin Townsend v. State of Indiana, 26 N.E.3d 619 (Ind. Ct. App. 2015).
· cites it 4× “[17] Ind.Code § 35-42-4-5 governs the crime of vicarious sexual gratification and provided in part at the time of the offense as follows: A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child under the age of…”
Ind. Code § 35-42-4-5(a): 7 cases
State v. Pollard, 908 N.E.2d 1145 (Ind. 2009).
“[8] Although there is a rational connection to a non-punitive purpose public safety and protection of children the residency restriction statute applies equally to persons convicted for example of vicarious sexual gratification as a Class D felony in violation of Ind.Code §…”
Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009).
“Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.”
Sipe v. State, 797 N.E.2d 336 (Ind. Ct. App. 2003).
“Indiana Code § 35-42-4-5 is written in the disjunctive; so, a person commits vicarious sexual gratification if he directs or aids or induces or causes a child to touch or fondle herself.”
Ind. Code § 35-42-4-5(a)(1): 2 cases
Sipe v. State, 797 N.E.2d 336 (Ind. Ct. App. 2003).
“Indiana Code § 35-42-4-5 is written in the disjunctive; so, a person commits vicarious sexual gratification if he directs or aids or induces or causes a child to touch or fondle herself.”
Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009).
“Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.”
Ind. Code § 35-42-4-5(b): 2 cases
Kevin Townsend v. State of Indiana, 26 N.E.3d 619 (Ind. Ct. App. 2015).
“[17] Ind.Code § 35-42-4-5 governs the crime of vicarious sexual gratification and provided in part at the time of the offense as follows: A person eighteen (18) years of age or older who knowingly or intentionally directs, aids, induces, or causes a child under the age of…”
Ind. Code § 35-42-4-5(b)(1): 1 case
Ind. Code § 35-42-4-5(c): 10 cases
Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008).
“Indiana Code section 35-42-4-5 is not unconstitutionally vague, and the evidence is sufficient to support Baum-gartner’s conviction thereunder for performing sexual conduct in the presence of a minor.”
United States v. Taylor, 640 F.3d 255 (7th Cir. 2011).
“Ind. Code 35-42-4-5(c). At trial, Taylor's defense was that he thought the person "elliegirl1234" with whom he was having these online conversations was an adult, and the idea that he was engaging with minor was a fantasy.”
Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009).
“Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.”
United States v. Cochran, 534 F.3d 631 (7th Cir. 2008).
“Code § 35 -^12-4-6 for child solicitation and Ind.Code § 35-42-4-5 for vicarious sexual gratification by fondling in a minor’s presence.”
Ind. Code § 35-42-4-5(c)(3): 6 cases
United States v. Taylor, 640 F.3d 255 (7th Cir. 2011).
“Ind. Code 35-42-4-5(c). At trial, Taylor's defense was that he thought the person "elliegirl1234" with whom he was having these online conversations was an adult, and the idea that he was engaging with minor was a fantasy.”
United States v. Cochran, 534 F.3d 631 (7th Cir. 2008).
“Code § 35 -^12-4-6 for child solicitation and Ind.Code § 35-42-4-5 for vicarious sexual gratification by fondling in a minor’s presence.”
Ind. Code § 35-42-4-5(c)(8): 1 case
Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009).
“Code § 35-42-4-5(c); vicarious sexual gratification, as a Class C felony, I.C. § 35-42-4-5(a); dissemination of matter harmful to a minor, a Class D felony, I.”
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