CRONE, J.
Effective July 1, 2007, the Indiana statutes providing for a sex offender registry were amended to create a sex and violent offender registry (“Registry”). Ind. Code § 36-2-13-5.5 (amended by P.L. 216-2007, § 52). Thus, one who is convicted of murder, voluntary manslaughter, attempted murder, or attempted voluntary manslaughter who fails to register required information with local law enforcement authority in the county where he/she resides, works, and/or is enrolled in school, commits a felony. Ind. Code §§ 11-8-8-7 , -17. In the fall 2007, James Gibson and other former violent offenders (“Appellants”) filed a complaint asserting that their inclusion on the Registry and the imposition of the various registration requirements violate the Indiana Constitution, specifically Sections 23 and 12 of Article 1. The complaint was filed against the Indiana Department of Correction and various county sheriff’s departments and prosecutors (“Appellees”).
Following a hearing, the Marion Superior Court, on March 13, 2008, issued findings of fact, conclusions of law, and entry of preliminary injunction regarding the enforcement of lifetime registration by violent offenders. Appellants, now certified as a class, appeal the denial of the preliminary injunction with respect to the ten-year registration requirement for violent offenders. Appellees, also having received class certification, cross-appeal the portion of the preliminary injunction that bars lifetime registration by certain violent offenders. We affirm in part and reverse in part with instructions.
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According to Appellants, the Registry requires registration by persons convicted of certain, but not all, crimes that result in death. Similarly, the Registry requires registration of persons convicted of certain, but not all, attempt crimes involving serious criminal intent. Appellants contend that these legislatively created classifications are not reasonably related to any inherent characteristics between those in the different classifications. Appellants further argue that the classifications dispense preferential treatment that is neither uniformly applicable nor equally available to similarly situated persons. In short, they claim that the newly amended Registry violates the Privileges and Immunities clause in Article 1, Section 23 of our state’s constitution. We disagree.
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. . . [Article 1, Section 23] imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of people: (1) the disparate treatment accorded by the legislation must be reasonably related to the inherent characteristics that distinguish the unequally treated classes; and (2) the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. . . .
. . . Appellants contend that the same “demonstrated intentional violent deadly behavior toward another person” could result in charges of battery, aggravated battery, criminal recklessness, attempted murder, or attempted manslaughter, depending on the prosecutor’s discretion. Since only a conviction for the latter two offenses would trigger the requirements of the Registry, Appellants claim disparate treatment.
We briefly point out that the Registry is concerned only with convictions, not charges. Charging decisions are based upon the likelihood that proof may be shown rather than the actual proof eventually presented. The more intriguing question raised by Appellants is why certain offenses resulting in death fall within the Registry’s ambit yet others do not. Presuming that the Registry statute is valid and resolving all reasonable doubts in favor of its constitutionality, as we must, we believe the trial court was correct in its resolution of the matter. That is, those who commit lesser crimes that happen to result in death have not demonstrated the intentional violent deadly behavior toward another person that would require compliance with the Registry. . . .
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Contrary to Appellants’ view, there are sufficient inherent differences between murder, voluntary manslaughter, and attempts to commit those crimes, as compared with the other listed offenses resulting in death, to permit the General Assembly to specify different treatment. To reach a different conclusion would be to substitute our beliefs as to the wisdom of these statutes for those of the legislators; we are not at liberty to do so. See King, 837 N.E.2d at 971 . Further, even if we believed the amended Registry was born of unwise or ineffectual policies, such belief would not make the Registry unconstitutional. See State v. Rendleman, 603 N.E.2d at 1334 .
Having reached the above conclusion, we separately address felony murder under the Registry. Indiana’s murder statute encompasses not only those who knowingly or intentionally kill another person, but also those who kill a person while committing or attempting to commit offenses such as arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor, carjacking, or dealing in certain narcotics and controlled substances. See Ind. Code § 35-42-1-1 (1) through -(3). In proving felony murder, the State need not prove that the defendant acted with any particular mental state – the killing could be entirely accidental – so long as the State proves that the killing occurred while the defendant was committing or attempting to commit one of the enumerated felonies. See Thomas v. State, 827 N.E.2d 1131, 1133 (Ind. 2005). Yet, a conviction for felony murder (because it is a type of murder) triggers the Registry’s registration requirements. At first blush, it seems incongruent to treat a felony murder the same as a typical knowing or intentional killing for purposes of the Registry and its attendant requirements. However, while a felony murder does not require the specific intent to kill, one who commits felony murder has “demonstrated intentional violent deadly behavior towards another person.” Indeed, the Legislature has chosen to list certain crimes in the felony murder statute precisely because a person who commits such a crime is expected to know that the underlying felony is associated with a high risk of death to another. See, e.g., Palmer v. State, 704 N.E.2d 124, 125 (Ind. 1999) (discussing how the conduct that constituted kidnapping “clearly raised the foreseeable possibility that the intended victim might resist or that law enforcement would respond, and thereby created a risk of death to persons present”); Head v. State, 443 N.E.2d 44, 50 (Ind. 1982) (noting the rationale that underlies the felony-murder rule, “the recognition that the crimes carry the inherent risk of bodily harm.”). Therefore, the classification is rational.
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To the extent that any additional offenses might seem to fit within the group of those requiring Registry compliance, yet are not currently included, such offenses are “isolated” or “insubstantial” examples of non-uniformity. See Dvorak v. City of Bloomington, 796 N.E.2d 236, 240 (Ind. 2003) (concluding that Bloomington’s ordinance regarding unrelated persons living in a house does not violate the Privileges and Immunities Clause despite the fact that some houses are “grandfathered”); see also App. at 28 (Conclusion 84, discussing how the classification needs some reasonable basis, yet need not be framed with complete “mathematical certainty”). Further, it would be up to the Legislature to decide whether other offenses might be added at some point to the current list.
Citing Article 1, Section 12, Appellants question whether the goals of the Registry are rationally related to the statutes requiring violent offenders to comply with the Registry. Appellants contend that in upholding registry laws concerning sex offenders, courts have cited studies that indicate that sex offenders have high rates of recidivism, and therefore, registries are rational methods to aid law enforcement in preventing recidivism/protecting society from future sex offenses. In contrast, the recidivism rationale does not work with violent offenders, claim Appellants.
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Article 1, Section 12, of the Indiana Constitution states: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law,” and “[j]ustice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” Our supreme court has recognized that Article 1, Section 12 contains a substantive component requiring legislative enactments to be rationally related to a legitimate legislative goal. See McIntosh v. Melroe Co., 729 N.E.2d 972, 979 (Ind. 2000). Stated somewhat differently from a rights perspective, Article 1, Section 12, recognizes that individuals have a right to be free from arbitrary government treatment. See Prior v. GTE North Inc., 681 N.E.2d 768, 775 (Ind. Ct. App. 1997), trans. denied. This inquiry is similar to a rational basis review under federal substantive due process analysis. McIntosh, 729 N.E.2d at 976, 979-80 .
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Considering our deference to legislative policies (regardless of our position as to the policies), the fact that there is some (albeit slight) recidivism among violent offenders at least for some time after release, and that community notification about violent offenders provides an opportunity for enhancing public safety (legitimate state interest), the requirement that violent offenders register for at least some19 amount of time meets the low threshold of rational relation. Thus, we see no violation of Article 1, Section 12.
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In their cross-appeal, Appellees assert that as a matter of law, the trial court erred in enjoining Appellees from requiring lifetime registration for violent offenders, thereby implicitly limiting the registration period to ten years. They assert that the plain language of Indiana Code Section 11-8-8-19 Â consistently requires lifetime registration by some but not all violent offenders. Appellees claim that it was reasonable for the General Assembly to determine that some violent offenders are at risk to re-offend for the remainder of their lives, and thus, the lifetime registration requirement is rationally related to the permissible state interests.
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Regardless of whether Appellees admit it, Indiana Code Section 11-8-8-19 (d), excerpted below, is problematic.
(d) A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter in which the sex offender:
(1) proximately caused serious bodily injury or death to the victim;
(2) used force or the threat of force against the victim or a member of the victim’s family, unless the offense is sexual battery as a Class D felony; or
(3) rendered the victim unconscious or otherwise incapable of giving voluntary consent;
is required to register for life.
(Emphases added). While it initially refers to a “sex or violent offender,” Subsection (d) then refers only to a “sex offender.” This is different than Subsections (b), (c), and (e) of Indiana Code Section 11-8-8-19 , which refer to “sex or violent offender” throughout. There are two possible explanations/ways to interpret this discrepancy. One, the reference to “sex offender” should be read to mean “sex or violent offender,” and the fact that it does not was simply an oversight that occurred when the Registry was amended to add violent offenders. Two, the reference to “sex or violent offender” is a mistake, which really should read “sex offender.” Again, perhaps this occurred when violent offenders were added to the Registry. See P.L. 216-2007, § 52. If the first interpretation is correct, then it does raise the question of how often someone convicted of murder, voluntary manslaughter, attempted murder, or attempted manslaughter would not also fall within one of the three subparts of Subsection (d). It is quite likely that the vast majority of violent offenders, even if they did not fit within Subsections (b), (c), or (e), would be required to register for life because they proximately caused serious bodily injury or death to the victim, used force or the threat of force against the victim or a member of the victim’s family, or rendered the victim unconscious or otherwise incapable of giving voluntary consent under Subsection (d). Indeed, in the case of violent offenders, Subsection (d)’s lifetime registration would seem to swallow Subsection (a)’s general rule of ten-year registration.
If the second interpretation is correct, then Indiana Code Section 11-8-8-19 (d) would only apply to sex offenders. Further, violent offenders would be subject to lifetime registration only if they also fell within Subsections (b) (also a sexually violent predator), (c) (committed at least one offense under section 5(a) when the offender was at least eighteen and the victim was less than twelve), or (e) (committed at least two unrelated offenses under section 5(a)). Presumably, this reading would substantially reduce the number of violent offenders required to register for a lifetime. Indeed, Wade and the subclass that she represents would not be subject to lifetime registration.
This second interpretation, which would apply Indiana Code Section 11-8-8-19 (d) only to sex offenders, makes sense when one considers that the subparts of Indiana Code Section 11-8-8-19 (d) track language from sex offense statutes. Specifically, Subsection (d)(1) references serious bodily injury, which would elevate a standard sex offense to a higher level felony. Similarly, Subsection (d)(2) references force or the threat of force, again, another circumstance that would elevate a standard sex offense to a higher level. See, e.g., Ind. Code § 35-42-4-1 (b) (noting rape rises to an A felony if committed by “using or threatening the use of deadly force” or if it results in “serious bodily injury”); Ind. Code § 35-42-4-2 (noting same with regard to criminal deviate conduct); Ind. Code § 35-42-4-3 (noting same regarding child molesting). In contrast, murder and voluntary manslaughter do not contain options to increase penalties if serious bodily injury and/or force or threat of force are shown. See Ind. Code § 35-42-1-1 (defining murder as knowingly or intentionally killing another human being); Ind. Code § 35-42-1-3 (defining voluntary manslaughter as knowingly or intentionally killing another human being or viable fetus while acting under sudden heat). Serious bodily injury and force/threat of force simply are not issues in the context of murder and voluntary manslaughter. Further support for construing Subsection (d) as applying only to sex offenders, rather than to violent offenders too, is found in Indiana Code Section 11-8-8-19 (d)(3)’s “incapable of giving voluntary consent” reference. While consent is a key component in sex offenses, it is a non-issue for purposes of murder or voluntary manslaughter.
As should be clear from the above discussion, this second interpretation of Indiana Code Section 11-8-8-19 (d) is neither absurd nor inconsistent with the statute’s goal of informing the public. To the contrary, applying Indiana Code Section 11-8-8-19 (d) only to sex offenders is the more logical reading of the statute. Accordingly, we clarify that a violent offender is required to comply with the Registry for ten years, unless he/she also falls within Subsections (b), (c), or (e) of Indiana Code Section 11-8-8-19 , in which case lifetime registration is warranted. Therefore, we conclude that the court’s preliminary injunction should apply only to members of the subclass represented by Wade. Such members are violent offenders who are or will be more than ten years removed from the later of the date they were released from prison, placed on parole or probation, or placed in a community corrections, and who are not sexually violent predators, were not convicted of an offense while over the age of eighteen against a victim less than twelve, and have not been convicted of two or more unrelated offenses under Indiana Code Section 11-8-8-5 (a). To the extent that the trial court’s order would grant a preliminary injunction against lifetime registration for all violent offenders, we reverse and remand with instructions to clarify the preliminary injunction consistent with this opinion. In all other respects, we affirm the trial court. 32
Affirmed in part and reversed in part with instructions.
DARDEN, J., and MATHIAS, J., concur.