March 15, 2019
Yesterday afternoon, a split Indiana Court of Appeals upheld the 2015 statutory prohibition of a serious sex offender from entering school property, even if the offender was convicted before the statute was enacted. In 2010, as part of a plea deal, Doug Kirby admitted soliciting a 15-year-old female, requiring him to register as a sex offender for ten years. In exchange for his guilty plea, his prison sentence was reduced to probation. One probation condition was that Kirby stay off school grounds. He subsequently obtained court permission to attend his son’s school activities, within limited parameters, until his probation ended. Five years later, Indiana enacted a statute that prohibited serious sex offenders from entering school property. Under that law a sex offender commits a felony by entering school property. Having pled guilty to child seduction, Kirby qualified as a serious sex offender and stopped attending school activities.
Kirby objected, arguing that the subsequent statutory restriction violated the ex post facto clause of the Indiana Constitution. That clause forbids laws that (1) impose punishment for an act that was not illegal when it was committed, or (2) adds punishment for an illegal act after it was committed.
After conducting a lengthy ex post facto analysis, in a two to one decision, the Indiana Court of Appeals held that Kirby could be excluded from school grounds. The court commented that being a registered sex offender for ten years is inconvenient, but the prohibition was (1) not excessive and (2) advanced the state’s important interest of protecting children. The court rejected Kirby’s argument that his limited access originally granted by the trial court to school grounds to attend his son’s events during his probation did not prove the 2015 statute unconstitutional.
The Kirby decision makes clear that serious sex offenders found guilty before the 2015 statute can be prohibited from entering school grounds, although no such specific statutory prohibition existed at the time of conviction. No longer can a parent or other persons argue to school officials that the statutory prohibition does not apply to them because they were convicted before the statute became law.
Have a question about this decision or a similar situation in your organization?
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Warrick & Boyn, LLP, is a full-service law firm in Elkhart, Ind., that practices in all areas of business and corporate law. Areas of practice include commercial litigation, creditors’ rights and bankruptcy law, labor and employment law, defense litigation, securities law and regulation, worker’s compensation defense, education and school law, EEOC law, employee benefits law and pension plans, environmental law and regulation, tax and estate planning, municipal law, and property and real estate law. The firm’s clients are located primarily in northern Indiana and southwestern Michigan, and most of the attorneys are licensed to practice in both Indiana and Michigan.