Meh. Just how I'd rewrite it. You're free to ignore.

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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 on the sole basis of 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” on the basis of status, are not entitled to federal First Amendment protections, including but not limited to 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” on the basis of status, 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” on the basis of status, 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” on the sole basis of status, 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 the lawful association and maintenance of family described in the international covenant of civil and political rights as ratified by the federal government 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 on the basis of status 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 solely on their “sexual orientation” or class status, and forwards those “tips” to law enforcement or child protective services for enacts investigation of the individual on the sole basis of class status.

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 common usage of 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. Both Gaffney and Freund have documented heritability. 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 cultural heritage, not a predisposition to commit towards criminal offenses acts.

(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

In the language of the Correctional Services department of Canda, 'the most signifigant finding is that the incest offender has no arousal to children.'

(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) the efforts to adress the concerns of the populace via catharasis, rather than the cessation of exemption and priviledge for intrafamilial violence.


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Crap. I'll have to finish the rest later... just a mild reordering to the full use of the language of civil protections and intrafamilial violence prevention...

...all in all, you wrote this pretty well. ;)