COA: Churches aren’t school property; sex offenders can attend

October 24, 2017

Three convicted Boone County sex offenders can return to their church congregations after the Indiana Court of Appeals determined that churches are not considered “school property,” so state statute cannot prohibit the offenders from going to church, even when children are present.

The appellate court handed down that decision Tuesday in John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. The case dates to 2015, when the Indiana General Assembly passed the “unlawful entry by a serious sex offender” statute, Indiana Code section 35-42-4-14. That statute prohibits “serious sex offenders” from accessing school property.

According to the statute, “school property” is defined as any “nonprofit program or service operated to … benefit children who are at least three years of age and not yet enrolled in kindergarten.” Based on that language, the Boone County prosecutor sent a letter to all registered sex offenders in the county informing them they could only attend church if their churches do not offer classes or services for young children.

But because each of their churches offered children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, three sex offenders known as John Does 1, 2 and 3, filed suit claiming the sheriff’s letter effectively prohibited them from attending church at any time. The Does sought declaratory and injunctive relief, alleging churches don’t meet the definition of “school property,” but the Boone Superior Court denied such relief, finding instead that the churches are only “school property” when children’s programming is in session.

The trial court also rejected the Does’ argument that the statute violates Indiana’s Religious Freedom Restoration Act, which prohibits the government from substantially burdening a person’s religious exercise unless there is a compelling interest and the burden is the least restrictive means of advancing that interest. Though ACLU of Indiana Legal Director Ken Falk, who argued on appeal on behalf of the Does, claimed the offenders’ case could be won on the issue of the definition of school property alone, he also told the judges on appeal that if churches are school property, then the serious sex offender statute would violate their rights under RFRA.

The state, however, argued that because church programs operate to “benefit children,” church buildings can be considered “school property” under that statutory language. Further, Deputy Attorney General Aaron Craft said the state had a compelling interest in protecting children from being victimized by sex offenders, and prohibiting those offenders from accessing children at church was the least restrictive means of accomplishing that interest.

The appellate panel consisting of Chief Judge Nancy Vaidik and judges Margret Robb and L. Mark Bailey seemed skeptical of the state’s claims during oral arguments, and ultimately agreed with the Does’ position in Tuesday’s opinion. Robb, who wrote for the unanimous panel, pointed to language in subsection (1)(D) of I.C. 35-42-4-14, which lists programs such as Head Start, preschool or developmental child care programs, as examples of “school property.”

“A common element among these listed examples, as well as the statute as a whole, is the focus on places or entities traditionally thought of and known as ‘school,’” Robb wrote. “Churches and religious institutions are not school, nor do they become so by use of the popular and common name of ‘Sunday school.’”

Robb also noted the statute specifically applies to entities that are required to be licensed under I.C. 12-17.2 or 31-27, which includes day cares, child care centers, foster homes and other similar entities.

While the appellate panel noted in a footnote that it did not reach the RFRA argument because it determined churches do not meet the definition of “school property,” Robb also wrote that if churches did fall under that definition, the statute would not “further the interest it seeks to redress as applied to these three men.” The case was, thus, remanded to the trial court with instructions to enter a permanent injunction prohibiting the state from arresting or prosecuting the Does if they go to church.

Falk told the Indiana Lawyer his office is pleased with the Court of Appeals’ decision, as it pertains to the important right of people to be able to attend church. He said once the case becomes final, the Does will want to return to their churches.

In an email to the Indiana Lawyer, Bill McCleery, spokesman for the Indiana Attorney General's Office, said the office is carefully reviewing the Court of Appeals' decision and will decide how to proceed within the appropriate deadline.

"The Attorney General takes very seriously the Indiana legislature's efforts to protect children from sexual abuse, and his office vigorously defends efforts to protect children such as the sex and violent offender registry," McCleery wrote. "The legislature's decision to restrict serious sex offenders' access to such places as school property is also one of these important efforts."



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