I. Introduction and Summary of Argument

The class that Plaintiff represents is composed of all residents of Marion County, the Consolidated City of Indianapolis, or traveling intra-County, who are or may be in the future parents, or custodians, or guardians of children, and who are attracted to minors (“pedophiles”). All Rule 23 elements are satisfied to certify the class. Plaintiff requests that this Court: (1) certify this case as a class action under Fed.R. Civ.P. 23(b)(2); and (2) appoint counsel to serve as counsel to the class.

II. Facts Not in Dispute

A. The State of Indiana’s Supreme Court Justices and Attorney General hold that minor-attracted individuals, based on their “sexual orientation” and class status, are separate and unequal to their heterosexual and homosexual peers.

B. The State of Indiana’s Supreme Court Justices and Attorney General hold that minor-attracted individuals, based on their “sexual orientation”, are not entitled to federal First Amendment protections, including the freedom to associate with each other, to be married, to associate with minors, without prior permission and supervision, including polygraphic monitoring of private and personal thoughts, by the State of Indiana.

C. The State of Indiana’s Supreme Court Justices and Attorney General hold that minor-attracted individuals, based on their “sexual orientation”, are not entitled to federal First Amendment political right.

D. The State of Indiana’s Supreme Court Justices and Attorney General hold that minor-attracted individuals, based on their “sexual orientation”, are not entitled to federal Fourth Amendment protections.

E. The State of Indiana’s Supreme Court Justices and Attorney General hold that minor-attracted individuals, based on their “sexual attraction”, are not entitled to have felony crimes committed against them in invidious animus investigated, or prosecuted, unless those crimes threaten constitutional challenge to the State’s Sex Offender Registry statute.

F. The State of Indiana’s Supreme Court Justices and Attorney General hold that parents or custodians of minors have no fundamental right to their relationship with their minor dependents.

G. The State of Indiana’s Supreme Court Justices and Attorney General hold that unlawful seizure of a parent or custodian’s minor dependent causes no injury to the parent or custodian.

H. The State of Indiana maintains an anonymous tipline that accepts reports of minor attracted individuals, based on their “sexual orientation” or class status, and forwards those “tips” to law enforcement or child protective services for investigation of the individual.

III. The Proposed Class Satisfies the Requirements of Rule 23(b)(2)

Certification under Rule 23(b)(2) is appropriate as the defendant "has acted or refused to act on grounds generally applicable to the class," thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole, Fed.R.Civ.P. 23(b)(2). "Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of Rule 23(b)(2) classes, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 605 (1997). It is "often acknowledged, (b)(2) was deliberately drafted to facilitate the vindication of civil rights through the class action device", Barefield v. Chevron U.S.A., Inc., 48 F.E.P. Cases 907, 910 1988 WL 188433 (N.D. Cal. 1988).

A. Existence of a Definable Class

(i) Terminology

“Minor attracted adult or adolescent” is an adequate term for the legal forum to describe the state of an individual being sexually attracted to children, in the absence of marked distress or interpersonal difficulty deriving from that attraction, or sexual offense exceeding the American Psychiatric Association’s six-month threshold specified in its definition of the term “pedophile”. It does not connote the animus implicit in the term “pedophile”, nor is it pejorative as is implicit in the term “pedophile”.

“Pedophilia” itself is not a legal term, as it describes no act. The word comes from the Greek παιδοφιλια—παιδί, "boy, child" and φιλια, "love, friendship". The ICD-10 (F65.4)¹ defines the word as "a sexual preference for children, boys or girls or both, usually of prepubertal or early pubertal age”. This is the context in which the word is commonly understood by the American body politic.

The current recognition of “pedophilia” as a specific disorder is attributable to an Austrian psychiatrist. ² The disorder, as defined by the American Psychiatric Association, includes individuals who “over a period of at least 6 months [have] recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children”, and either “the person has acted on these sexual urges” or “the sexual urges or fantasies cause marked distress or interpersonal difficulty”. To qualify for the disorder, the individual must be “at least age 16 years and at least 5 years older than the child or children” that are the subject of fantasies, urges, or behaviors. ³ The disorder is not, in itself, a volitional impairment.

Approximately ninety percent of individuals who meet the DSM definition of a “pedophile” are heterosexual men who have engaged in intra-familial sexual contact with minor dependents and are not sexually attracted to children. Some estimates place this figure as high as ninety-eight percent. ⁴ A “pedophile” who is not distressed by his or her sexual feelings except in response to public condemnation does not qualify for a disorder. “Pedophilia” is a term subject to “diagnostic and definitional chaos”, as “[b]etween Krafft-Ebing and DSM-III-R lies a trail of diverse definitions of pedophilia and diagnostic criteria strongly rooted in the realms of law and morality”.⁵

Law enforcement has rejected the APA terminology and defined their own relevant terms. An individual's status as a “minor attracted” person is usually a mitigating circumstance in sentencing during criminal procedures, resulting in very distorted sentencing patterns. Dr. Kenneth Lanning⁶ has consistently used “Situational Child Molester or Offender” to describe individuals who are clearly heterosexual, not sexually attracted to minors, and who typically offend intra-familially, and “Preferential Child Molester or Offender” to describe individuals who are sexually attracted to minors and who typically offend extra-familially.

Some in related fields of academia have adopted a similar dichotomy of terminology in their research. The terms “regressed” and “fixated” are sometimes used in place of “situational” and “preferential”, as in the Groth Typology⁷ and this Wikipedia definition:

“The regressed offender has a primary sexual orientation toward adults, but can be aroused by children. In most cases he is heterosexual….[t]his behavior is a maladaptive attempt to cope with specific life stresses….[t]he fixated offender has a primary sexual orientation toward children, i.e. he is a pedophile. The sexual interest in children manifests itself in adolescence for this offender.” ⁸

(ii) Description

“Minor-attraction” is believed to be a congenital or genetic condition, and does not appear to involve the same mechanism by which gender preference is determined in an individual. Kurt Freund, M.D., a prominent authority on the subject, has reported that “[i]t appears likely that pedophilia research may acquire a firmer basis by further development of brain imaging”.⁹ The phenomena is distinct and quantifiable, in the same fashion that earlier progress in the field of neurobiology was driven by patients with damage to known areas of the brain. “The present writer’s impression is…research…most feasible in the not too remote future would examine anomalies in brain structure…[t]he most recent development, the MSI… appears promising in resolving this difficulty and may develop enough in the not too distant future sufficiently, to make possible the localization of brain structures relevant to paraphilia research”, id.

Dr. Freund’s findings are good science. While a genetic etiology of gender preference is questionable, it is certain that it involves a congenital process differentiated between heterosexual men and homosexual men. “We know from studies on rats that the hypothalamus is strongly connected with sexual activity. We also know from those studies that the neurotransmitter serotonin is associated with sexual behavior and arousal”, and the “remarkably strong association… between hypothalamic physiology and sexual orientation” is the reason for neurobiology’s belief in “the promise of functional brain imaging for elucidating the neuroanatomy and neurophysiology underlying human sexual behavior and functioning”, ¹⁰ in addition to providing the discoverer of this specific physiology a Nobel award. ¹¹

Individuals with this condition experience it identically to those granted a sexual identity by law. ¹²

(a) Feelings and Emotions are Similar to Those of People Attracted to Adults

"Pedophiles are men whose sexual wishes and desires for relationship bonds and love are focused either primarily or exclusively on children who have not reached puberty... [p]edophilia is as much a part of him as is love for the same or opposite sex for the homosexual or heterosexual man or woman, the difference being that the one is accepted, while the other is categorically forbidden and virtually impossible to realize.” ¹³ In a study of non-sex offending minor attracted individuals, when asked what they really wanted if there were no legal restrictions, the most frequent response involved the love, care, and protection of the child. ¹⁴

(b) Minor Attracted Individuals Show no Signs of Pathology Beyond Those Seen in Individuals Attracted to Adults

The idealized homosexual androphile [preferentially attracted to men] shows slight arousal to prepubescent boys, medium arousal to pubescent boys, and maximum arousal to adult males. The idealized homosexual pedophile exhibits the reverse pattern: slight arousal to men, medium arousal to pubescent boys, and maximum arousal to prepubescent boys. The results of this study appear applicable to those preferentially attracted to females. This suggests that aversion to adults is not a factor in pedophilia. The data also do not support the theories that pedophilia is due to fixation at an immature stage of development, to an inability to relate to women, to mental retardation, or to senility. ¹⁵ Other studies are "consistent with previous findings in failing to discover any obvious links between pedophilia and aggressive or psychotic symptoms. The majority of pedophiles, however socially inappropriate, seem to be gentle and rational".¹⁶ One well-conducted study was unable to find any particular personality profile for pedophiles. Even when characteristic traits are found, they may be due to society’s reactions rather than be causes or correlates of pedophilia. ¹⁷ Little clinically significant pathology is found among pedophiles in non-prison samples. ¹⁸

Studies claiming to show that pedophiles suffer from social inadequacy, low intelligence, excessive religiosity, narcissism, gender pathology, psychosexual immaturity, and aversion to women and adult sexuality are based on biased samples of child molesters who do not represent pedophiles in the general population, and many of whom are not actually pedophiles. ^{19, 20} (c) Minor Attraction Becomes Apparent in Puberty or Earlier, Like Attraction to Adults

Some authors have suggested an evolutionary basis for pedophilia, and the theory that minor-attraction is a condition deriving from intertwinement of the sexual attraction mechanism and the mechanism by which adults are drawn to protect and nurture children. Some qualities that pedophiles find attractive in children (e.g., vitality, playfulness, and clear complexion) are an important basis for attraction between adults and have evolutionary origins. ²¹ Homosexual–bisexual pedophiles have a later birth order (among brothers) than comparable heterosexual pedophiles, and this finding is very similar to birth order results among androphiles and gynephiles. ²²

At puberty, some three percent of the male population becomes aware that they are minor-attracted. Medical research and clinical observations suggest that development of erotic gender preference precedes that of erotic age preference.

These researchers conclude that pedophilia is predetermined at least from early childhood. ²³ In contrast to their peers, whose age of attraction (“AoA”) range, fairly represented by a bell curve with “uninhibited” behavior in a first ∑ of a few years of their chronological age, tracks their own chronological age throughout their life, the minor-attracted adolescent’s AoA is fixed throughout their life span.

(d) Minor Attraction Cannot be “Cured”

In testimony before the district court, a prominent researcher on the subject has stated that “major health organizations including the American Psychiatric Association and the American Psychological Association officially recognize that sexual orientation (homosexual or heterosexual) cannot be changed. It is becoming more accepted among professionals that other sex and gender orientations, as well as other sexual interests, cannot be changed…[a]ttempts at changing their sexual interests have been unsuccessful.” ²⁴ Studies of the effectiveness of aversion therapy, covert sensitization, and other behavioral methods on transvestites, exhibitionists, pedophiles, and others have reported success rates no better than when used on homosexuals [i.e. ineffective]. ^{25, 26}

A senior Board Member of the American Psychiatric Association and Director of the John Hopkins Institute has stated that "[p]edophilia can be thought of as a sexual orientation...[h]istorically, untold numbers of human beings have been both demonized and vilified simply because their sexual makeups differ from the norm...[a] recent Journal article documented that the vast majority of individuals with pedophilia show no evidence of either antisocial or narcissistic personality disorder".²⁷ At the American Psychiatric Association’s 2003 Annual Convention, held May 19th of that year in San Francisco, psychiatrist Charles Moser of San Francisco's Institute for the Advanced Study of Human Sexuality and co-author Peggy Kleinplatz of the University of Ottawa presented conferees with a paper entitled "DSM-IV-TR and the Paraphilias: An Argument for Removal".²⁸ Peer commentaries published subsequently show substantial uncertainty about, and support for, removal of pedophilia from the DSM. ²⁹

(iii) Circumscription

(a) A Minor Attracted Orientation is Not a Rational Basis to Discriminate Against

The invidious animus towards minor attracted individuals widely extant in American society, and driving the State of Indiana’s attempt to create a separate and unequal status for such individuals, is predicated on a belief that such individuals present an unacceptably high risk of committing various sexual offenses against children. ³⁰ Both adult-attracted males and minor-attracted males commit these types of offenses. The rate of commission of the crime of child molestation is not widely disparate between the two populations; heterosexual men molest children at a rate of 1.5 incidents per thousand individuals annually, and minor attracted men molest children at a rate of 6.75 incidents per thousand individuals annually. ³¹

The sex offender treatment field holds that commission of sexual offenses derive from stresses such as becoming overwhelmed by feelings and emotions, death of a family member, friend, etc., marital and family problems, feelings of loneliness, shame, guilt, anger, and abandonment, or substance abuse, among other precipitating factors. The divergence in incidence of the crimes of child molestation and rape between the populations of minor attracted and heterosexual men, respectively, lies in increased exposure to these risk factors between the populations. Current treatment modality includes development of individualized “relapse prevention plans” for offenders. Most follow a similar pattern including identifying high-risk situations, learning alternate ways to respond to high-risk situations, creating a plan for healthy living, and developing a support system. ³²

Some of the literature has taken notice of certain recurrent characteristics seen in preferential child molesters, and posited that these indicate a predatory disposition of minor-attracted individuals who have committed sexual offenses. Some characteristics mentioned are youth-oriented decorations in house or room, having hobbies and interests appealing to children, visiting children with attention, affection, and gifts, sharing activities with children, identifying with children, having associates and circle of friends that are young, or excessive interest in children. ³³ These characteristics are common among most minor attracted individuals and reflect a distinct and valid culture, not a predisposition to commit criminal offenses.

(b) Minor Attraction is Not a Mental Disorder.

While a minor attracted sexual orientation itself does not facially qualify an individual under the American Psychiatric Association’s diagnosis of “pedophilia”, current clinical practice among mental health and sex offender treatment professionals is to consider such individuals as “pedophiles”. Even Executive Board Members within that organization, who have some control over the organization’s “DSM” definition, sometimes state that all minor-attracted individuals are described by the term. ³⁴ “It is important to realize that to refer to someone as a pedophile is to say only that the individual has a sexual preference for children. It says little or nothing about the other aspects of his character and personality.” ³⁵ “The APA position with its DSM catalogue is logically incoherent...[t]hese people with these fantasies do not have a mental disease unless that person translates thought into action….[c]ertainly a society can set rules on sexual conduct and proscribe child-adult sex and invoke sanctions for transgressors. But that is the province of the law and the penal system. The DSM should not provide psychiatry with jurisdiction over an act any more than it should provide the law with jurisdiction over a thought”. ³⁶

(c) Extant Research on Minor Attraction is Largely Suspect

Minor attracted individuals rightly fear society, including researchers, and very little research has been done on this population. Lead plaintiff in this suit has met several hundred minor attracted individuals, and their friends and loved ones, and his knowledge of the population is superior to that of the established sciences.

In place of any actual knowledge the social sciences have substituted clinical standards as the criteria of truth. Shared, strong beliefs and the personal sincerity of those who advocate these beliefs are held over fact in the various fields. Treatment practices, and the State’s position, have been validated by reference to clinical experience, but the nature of this experience has usually been unstated, and the beliefs that are attributed to it have varied widely among similarly experienced clinicians. This phenomena is pervasive in the pendant state proceeding; the State of Indiana clearly bases its concern in plaintiff’s sexual orientation while that fact is unstated anywhere in the pendant proceedings. Extensive research evidence supports the conclusion that, among clinicians, personal beliefs, thus developed, are almost always given greater credence than scientific evidence and are considered to be the real or moral truth when the two sources of evidence are at variance. ³⁷

The American Psychological Association (“APA”) maintains an academic censorship board to suppress research from its peer-reviewed journals and official positions that conflict with treatment practices validated by reference to clinical experience. In 2002, the APA revised its integrity code to facilitate this practice, permitting research “[i]n situations in which deception may be ethically justifiable to maximize benefits and minimize harm” to be published without warning of their fraudulent nature “in light of their potential social, legal, and political implications”. ³⁸ The suppressed research includes publications which contradict the “SOT” doctrine of “deviant fantasy ideology”, holding that having sexual fantasies predisposes a person to act on those fantasies.

(d) Minor Attraction is Not a Volitional Impairment

The volitionally-impaired and mentally-disordered sexual offender presents significant social concern, and also great difficulty in crafting laws to protect society from such individuals, Kansas v. Hendricks, 521 U.S. 346 (2002). The Supreme has found that volitional impairment need not be absolute in civil commitment proceedings, Kansas v. Crane, 534 US 407 (2002). Subsequent to Crane, the Arizona Supreme considered the issue and found that “[w]hatever label is applied, be it ‘volitional impairment’, lack of behavior control or some other term, so long as it causes a high probability that the person will engage in the prohibited conduct, a behavior control element is part of the Arizona statute”, In Re Russell E. Walters, 200 Ariz. 298 (S.Ct. 2001).

Neither a minor-attracted individual’s sexual orientation, nor a clinical diagnosis of pedophilia, imply a volitional impairment. This nexus cannot be inferred from diagnoses. The DSM-IV clearly states that a clinical diagnosis "is not sufficient to establish the existence for legal purposes of a mental disorder, mental disability, mental disease or mental defect". Of particular relevance to volitional impairment, DSM-IV further specifies that "having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time".³⁹ Minor attracted individuals have relatively strong proscriptions bounding their behavior. Heterosexuals routinely avoid much less severely proscribed behavior, such as the very common male fantasy involving multiple women, ⁴⁰ and there is no valid basis for holding that minor-attracted individuals are somehow fundamentally different than others in society. This suit is not concerned with minor attracted individuals who lack a conscience, and the problem of such individuals is not properly addressed by the State in its attempt to create a separate and unequal class of citizens based on sexual orientations.

(e) Stranger Abduction-Homicide of Children is Committed Predominantly by Heterosexual Men

Somewhere between 52 and 158 children a year are kidnapped, sexually assaulted, and murdered by non-family members. Adolescents 14 to 17 years old account for approximately two thirds of these victims. ⁴¹ In spite of a few notable exceptions, most of the sexually motivated child murderers profiled and assessed by the FBI Behavioral Science Unit have involved situational-type (i.e. heterosexual) child molesters who display morally indiscriminate and inadequate patterns of behavior. Low social competence seems to be the most significant risk factor in why a child molester might abduct his victims.⁴² The offense is typically a heterosexual one, and minor-attracted individuals are defamed with the actions of heterosexuals by the consistent practice of the media in identifying such individuals as “pedophiles”.

(f) Incestuous Child Abuse is a Phenomena Distinct From Minor-Attraction

The overwhelming majority of cases of child molestation are committed by heterosexual men, or “situational child molesters”. The situational child molester does not have a true sexual preference for children, but engages in sex with children for varied and sometimes complex reasons. Many incestuous fathers and live-in boyfriends are morally indiscriminate individuals whose sexual abuse of children is only a small part of their problems. They have no real sexual preference for children but sexually abuse available children because they can. They sometimes victimize the children in the home because they are in competition for mom’s attention and time. ⁴³

(iv). Connotation

Plaintiffs are injured by invidious class-based animus widely extant in American society, when the organs of Government seek to further discrimination against the class through its policies and procedures. The animus derives from the recognition in the past thirty-five years that various sexual offenses against children are common⁴⁴ and the pervasive and erroneous belief that minor-attracted individuals are responsible for these crimes, supra, § III(a)(ii).

Our Nation’s syndicated media networks have promoted this class of individuals as an irrational object of disfavor. In the preceding ten years, portrayals of “child molesters” in media have either been silent on the sexual predisposition of the offender or portrayed the character as minor-attracted. In the 2004-2005 television season, every single minor-attracted character in syndicated media was portrayed as a predatory and violent sexual offender. ⁴⁵ Current public debate with respect to non-offending minor attracted individuals surrounds the extent to which extra-lawful violence against their persons is permissible. ^{46, 47} It is the common and repetitive experience of every minor attracted individual, who has concealed his sexual identity, to listen to his peers discuss the justness of his murder.

The State of Indiana’s color of law furtherance of this invidious animus is particularly insidious. Following the Second World War, psychologists and sociologists attempted to understand why people obeyed immoral orders in the Holocaust. Stanley Milgram, in a controversial experiment, ⁴⁸ demonstrated that reasonable people, when instructed by a person in a position of authority, obeyed commands entailing what they believed to be the death or suffering of others.

To establish class based invidious animus held by the defendants against plaintiffs, the defendant’s conduct need not be motivated by hostility toward any individual class member, Griffin v. Breckenridge, 403 U.S. 88 (1971). Defendant’s animus is aimed at a status that only members of the protected class have the capacity to carry. That the State has a compelling interest in preventing the sexual abuse of children, and thus has other intended effects of its actions against the class, does not bear on the issue of establishing invidious animus, Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-266 (1977). Defendant’s belief that their animus is rational (“cannot be construed as egregious…”) does not negate that such propositions were never free of the class based discrimination from which § 1983 protects members of the class.

The State’s discrimination against the class has a direct and profound impact on the ability of such people to integrate into the community, forces them into a life of deception, and deprives them of the fundamental right to live an honest life. This segregative effect, in turn, feeds the irrational stereotypes that lead to further discrimination against the class, many implicating fundamental rights, as the absence of minor attracted people from the body politic is taken as evidence of their fundamental inequality, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999) (segregation “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”). The acts of the State of Indiana in furtherance of invidious animus against the class can be determined by their intent and their effect.

(a) Class Members Receive Unequal Treatment Under the Law

The population of minor-attracted men and heterosexual men both carry some risk of the commission of sexual offenses against children, and that risk is comparable between the classes. The instant circumstances under which these two populations commit such offenses are comparable, i.e., usually in response to a significant stressor, although the motivations differ. The crimes are primarily distinguished by the much greater damage caused when the crime is committed by a heterosexual male, due to the intra-familial nature of such crimes and the frequency at which the incestuous behavior is longer in duration than extra-familial sexual offenses. The State of Indiana maintains separate statutory schemes for convicting such offenders. Heterosexual males are charged under Indiana’s incest statute, IC 35-46-1. Minor attracted males are charged under Indiana’s child molestation statute, IC 35-42-4, and the sentencing disparity is as wide as a year of work release and life imprisonment for first offenses. If the State of Indiana did not carry invidious animus against minor attracted individuals, it would not maintain “incest exemption” statutes for heterosexual and homosexual child molesters.

(b) Class Members Receive Unequal Protection of the Law

Crimes committed in invidious animus against class members are not prosecuted by the State, excepting those crimes which threaten public perception of the State’s sex offender registry scheme. The case at Bar is replete with examples of failure to prosecute crimes against the lead plaintiff. It is the policy of the State and its judiciary to freely allow perjury against class members to deprive them of fundamental right. Class members are investigated for political activity, including opposition to incitements of violence. The State maintains anonymous tiplines to allow neighbors and relations to report class members based on a congenital and benign condition. The Marion County Juvenile Court routinely permits complaint unfounded in law to deprive class members of familial relation and associational right.

(c) Class Members Are Subject to Servitude to the State Upon Identification

When the State of Indiana is successful in identifying class members and gains compelling leverage over their conduct, such as by unlawfully seizing their minor dependents, it pursues cruel tactics to pervasively control nearly aspect of the individual’s life. The State seeks control over who the person associates with; who they live with; where they live; where they travel; when they travel; what employment they can seek; the speech they may engage in; their access to the political process; and what private and personal thoughts they may have. Class members lose their First and Fourth amendment rights in toto, for whatever duration of time the State is able to exercise its coercion. The State knowingly pursues a futile policy of attempting to change such individual’s sexual orientation. Nor is the State satisfied with injuring the object of their animus; they seek harm against the class member’s family as well. In the pendant state proceeding, based on plaintiff’s wife progress in agreed-entry “service recommendations”, it appears the State is attempting to force a termination of parental rights of plaintiff’s divorcing-wife by holding the plaintiff’s son in foster care far in excess of the time that it holds the minor dependents of spouses of heterosexual men convicted of child molestation. Plaintiff’s wife is hostile to his efforts to defend himself given this risk. Plaintiff stands accused of a status in that proceeding, not a crime.

(d) State Sponsorship of Extra-Lawful Violence Against Class Members

Defendant’s monetary “bounty” challenged by plaintiff in the media interview that led to the present suit can reasonably be presumed to reflect a class-based intent. There is no other reasonable explanation for such a monetary reward, based on a political affiliation that identifies class status, than incitement to violence, and this fact was clearly reflected in statements made by subsequent callers to the syndicated radio program. By investigating and prosecuting a victim of that private action, the State of Indiana’s class-based animus can be determined solely by effect.

B. Common Injury

Joinder in suing for one’s fundamental civil rights, in the face of a sovereign State’s attempt to create a separate and unequal class for individuals similarly injured, is distinctly a political act. Those common injuries include the following.

(i) Dependents Seized Upon Joinder at Bar

Any class member who joins the plaintiff at bar will suffer seizure of their minor dependents by policy of the State of Indiana.

(ii). Anonymous Reporting of Class Status Triggers Investigation

The State of Indiana and the National Center for Missing and Exploited Children maintain hotlines, which accept tips based upon an individual’s sexual orientation, and refers these tips to county Office of Family and Children offices or local, state, and national law enforcement for investigation of the nature of the individual’s private thoughts.

(iii). Denial of Equal Access to Mental Health Treatment

The State of Indiana’s juvenile statute permits privileged patient-client information in a mental health context to be presented as evidence against minor-attracted individuals, and it is the customary practice of Marion County mental health practitioners to report individuals, based solely on their sexual orientation, to county Office of Family and Children offices for investigation, depriving those individuals of access to mental health services on an equal basis to their peers. “These resources simply are not available…for an adolescent or a young-adult male who is dealing with a preferential sexual attraction to children or younger adolescents…[i]t is, therefore, not surprising that adolescent and adult males who are dealing with this issue rarely discuss it with anyone.” ⁴⁹

(iv). Forced Isolation From Society

Minor attracted individuals suffer from circumstances that have been identified as the “isolated minority” syndrome. The cause of this syndrome is a lack of identification model. The minor attracted individual, in isolation, has no knowledge of any appropriate script for his life. He does not even have an understanding of his own identity. The social symptoms in the isolated minority syndrome can best be explained by the theory of deviancy amplification. ⁵⁰ The sexual frustration for want of useful material on secular celibacy, low self-esteem, social stigmatization and isolation may often lead to substance abuse, social de-route, non-sexual crimes, political extremism and suicide. The symptoms mentioned above are often believed to be characteristic of paraphilias per se, but they are in fact secondary symptoms of the social suppression. ⁵¹ It is not possible to change the sexual orientation, but it is possible to relieve the isolated minority syndrome, thereby improving the minor attracted individual’s psychological and social well-being.

(v) Deprivation of Freedom of Speech

Class members are estopped in the natural human instinct to be understood by those one loves or develops friendships with due to the State’s actions.

IV. All Requirements of Rule 23(a) Are Met

A. The Proposed Class is Sufficiently Numerous

Plaintiff estimates the number of minor attracted individuals in Marion County at approximately 7,500 individuals, based on a 3.75% incidence of the condition among male adults and adolescents. There is one study in the literature to estimate the size of this population. ⁵² This incidence rate is supported by separate means as well. There are approximately 3,000 registered sex offenders in Marion County. Situational and preferential sex offenders commit child sex offenses in a ratio of approximately ninety percent to ten percent of total offenses (supra, Fn. 4). Errors in the proportion of both populations are likely offset; sexual offenses committed by situational child molesters are under-reported relative of those offenses committed by preferential child molesters, and preferential child molesters serve longer terms of incarceration. Extending the 2,700 situational registrants into the male adult and adolescent population of Marion County⁵³ shows an inverse relationship for the 300 minor-attracted registrants of 2.73%, very comparable to the posited 3.75% incidence rate of the condition. By way of comparison, homosexuality is reported at an incident rate of 2.21%.⁵⁴ It is unknown at what rate minor attracted individuals elect to become parents or custodians of minors.

The class is cognizable and identifiable by reference to "something more than . . . [the members'] desire to engage in conduct that the….defendant disfavors", Bray v. Alexandria Clinic, 506 U.S. 263, 269 (1993). The substantive characteristics of the class divide those individuals into distinct, separate, and identifiable groups, e.g., Libertad v. Welch, 53 F.3d 428, 449 (1st Cir. 1995) (holding that women constitute a class) and Keating v. Carey, 706 F.2d 377, 379 (2d Cir. 1983) (holding that Republicans constitute a class). The class is sufficiently distinct that a reasonable person can readily determine by means of an objective criterion or set of criteria who is a member of the group and who is not, Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir. 1972) (noting that a class must be "readily recognizable"). It is not necessary that the members of the class be so clearly and completely identified that any member can be presently ascertained, Haywood v Barnes, 109 F.R.D. 568, 576 (EDNC 1986), and the risks of State action for joining at Bar make individual joinder impractical. Class members are in a poor position to obtain legal redress because they are ill-informed or because such relief is disproportionately expensive, and these factors favor certification, Gordon v Forsyth County Hosp. Auth., Inc., 409 F. Supp 708, 717 (MDNC 1976). As identification of class members is difficult, the numerosity criteria is met. The relief sought and to which class members may be entitled is uniform throughout the class, and this favors certification of the class, Doe I. v. Guardian Life Insurance Company of America, 145 F.R.D. 466, 471 (ND IL 1992) (Nature of the relief sought consideration in certification decision). Finally, request for prospective relief will have an effect on future class members, Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).

B. The Claims of the Named Plaintiff are Typical of the Class He Seeks to Represent

Plaintiff has sufficiently established a nexus as the claims or defenses of the class and the class representatives arise from the same events or pattern or practice and are based on the same legal theory, Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984). Typicality exists as the claims are based on the same legal or remedial theory and no conflict of interest exists between the named plaintiff and the class members, Meredith v Mid-Atlantic Coca Cola Bottling Co., 129 F.R.D. 130, 133 (ED Va 1989). Plaintiffs’ grievances are typical of other members of the class who have the same or similar injury, or will if they join at Bar, and the State’s action is based on conduct that is not unique to the named plaintiffs, Hanon v Dataproducts Corp. 976 F.2d 497 (9th Cir. 1992).

C. There Are Questions of Law and Fact Common to the Class

Plaintiffs’ grievances share a common question of law or fact with the class. Commonality is not a difficult hurdle; the requirement should be "construed permissively", Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). In the case at bar, wherein defendants have acted through unlawful policy or procedure, or enter into conspiracy to deprive right based on invidious animus towards class status, commonality is readily shown because the common question is whether the defendant in fact acted through the unlawful policy or procedure, Vels v. Premier Athletic Center of Plainfield, Inc., 182 F.R.D. 500 (WD Mich 1998). Finally, the benefits of class disposition will inure to the class if it is certified, Stott v Haworth, 916 F.2d 134 (4th Cir. 1990).

D. The Named Plaintiffs is Adequate and the Court Should Appoint CLAP
Counsel

(i) Named Plaintiff

Lead plaintiff is a "conscientious representative" of the class, Rand v. Monsanto Co., 926 F.2d 596, 599 (7th Cir. 1991), and does not carry antagonistic interests with the remainder of the class.

(ii) Counsel

Depending on the outcome of the case at Bar, multiple thousands of decent, law-abiding citizens in Marion County will either be held as fundamentally unequal to their peers in society, and deprived of a magnitude of right that is breathtakingly sweeping, or will taste freedom for the first times in their lives and know what it is to be equal men under the law. Plaintiff cannot finance class counsel from his personal resources; the actions of the State have created an environment proscribing fund-raising for counsel from the class; yet the questions of law and fact that plaintiff will decide for the class demand that their rights and interests are represented in the case at Bar. Plaintiff prays the Court to appoint class counsel from the Civil Legal Assistance Panel maintained by the Southern District Court, to designate lead plaintiff as pro se co-counsel to that class counsel, and to opine that such service by counsel constitutes fulfillment of Indiana Rules of Professional Conduct Rule 6.1 as "service in activities for improving the law".

V. Proposed Trial Plan

The Court decides:

1) Whether the challenged provisions of Indiana’s juvenile dependency code are constitutional.

2) Whether the challenged provision 28 U.S.C. § 1441 is constitutional.

3) Whether the Attorney General of the State of Indiana has employed federal Title IV-B or IV-E funds to deprive plaintiffs of right in furtherance of invidious animus.

4) Whether the policy of the State of Indiana, in seizing the minor dependents of class members for political activity or based on class status, is constitutional.

5) Whether child seizures conducted by the MCOFC which knowingly and with premeditation fail to state claim, or knowingly and with premeditation lack probable cause, exigent circumstances, or court order, or are in furtherance of invidious animus against the class, are actionable causes under federal conspiracy against rights statute.

6) Whether the State’s complaint against plaintiff in the pendant State proceeding is constitutional.

7) Whether the seizure and detention of plaintiff’s minor dependent was lawful.

The Jury decides:

8) If the policy of the State of Indiana, in seizing the minor dependents of class members for political activity or based on class status, is warranted in fact.

9) If defendants “MCOFC Caseworker” and “MCOFC Supervisor” violated 42 U.S.C. § 1943.

The Court decides:

10) Appropriate injunctive or declaratory relief

11) Appropriate individual-claim damages

12) Appropriate mamandus.

Subsequent to private defendant’s answer to complaint and initial status conference, plaintiffs will submit a written trial plan, including briefing on the sufficiency of the trial plan.

VI. Conclusion

Plaintiffs have established all the requirements for certification of this case as a class action. The proposed trial plan provides an efficient and effective means for bringing justice to thousands of men who daily suffer the indignities of pervasive state-sponsored discrimination. This Court should, therefore, order certification of this case under Rule 23(b)(2).

Respectfully submitted,

Kevin Brown
Pro Se Plaintiff