Sex offender statute to come before Supreme Court

A sex offender convicted in 2010 must make his case to the Indiana Supreme Court as to why a 2015 law should not bar him from attending his son’s school events after the high court granted the state’s petition to transfer the case last week.

After his 2010 child solicitation conviction, Douglas Kirby was sentenced to 18 months, all suspended to probation, and was ordered to register as a sex offender for 10 years. He was initially granted permission to enter school property to attend his son’s school activities, but in 2015, Indiana Code section 35-42-4-14 went into effect and made it a Level 6 felony for sex offenders such as Kirby to enter school property.

After initially losing his bid for post-conviction relief, Kirby successfully argued before the Indiana Court of Appeals that the statute was unconstitutional as applied to him because it amounts to a retroactive punishment in violation of the Ex Post Facto Clause. The state sought transfer of Douglas Kirby v. State of Indiana, 18S-CR-79, which the Supreme Court unanimously granted.

I.C. 35-42-4-14 was also the subject of a religious rights case, John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. In that case, the appellate court determined that churches that also house schools or other children’s programming don’t meet the statutory definition of “school property,” so sex offenders can attend church without restriction.

That ruling, however, led to the filing of Senate Bill 295, which would allow sex offenders to attend church only 30 minutes before or after worship services if the church property also houses an educational institution. SB 295 passed the Indiana Senate with a 36-12 last week vote and has been referred to the House Committee on Courts and Criminal Code.

The Supreme Court also granted transfer to a juvenile case last week, T.H. v. State of Indiana, 18S-JV-80. After T.H. threw a brick through a woman’s car window, he was adjudicated a delinquent for what would be Class A misdemeanor criminal mischief if committed by an adult, for causing more than $750 in damages.

A majority of the Court of Appeals affirmed T.H.’s adjudication, but based on the lesser offense of Class B misdemeanor criminal mischief, finding the state failed to prove he caused at least $750 in damages. Judge Cale Bradford dissented.

Oral arguments have not yet been set in either case.

The Supreme Court also denied transfer to 22 other cases last week. The full list of transfer decisions can be read here.